Kaur & Kaur
[2014] FCCA 2843
•9 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR & KAUR | [2014] FCCA 2843 |
| Catchwords: FAMILY LAW – Children aged 7 and 4 – overseas travel – father wishes to travel to India for three weeks – mother opposes travel on basis of a risk that father will not honour promise to return the children to Australia – mother further opposes the travel on the basis children have not previously spent extended periods of time in father’s sole care and proposed trip is too long in its duration – mother asserts that she has always been children’s primary carer – father asserts that he has been integrally involved in providing care for the children since the date of their respective births – parties and children share Indian background – children both born in Australia – both parties Australian citizens – India a non-Hague convention country – father seeks further time with children prior to final hearing – nature of interim hearing parties – assessment of risk – weighing up of possible benefits and detriments of proposed travel – matters to be considered – best interests. |
| Legislation: Family Law Act 1975, ss.60B; 60CA; 60CC; 61DA; 64B; 65DAA |
| Gin & Hang [2010] FamCA 617 MRR v GR (2010) 240 CLR 461 Kuebler & Kuebler (1978) FLC 90-434 Line & Line (1997) FLC 92-729 |
| Applicant: | MR KAUR |
| Respondent: | MS KAUR |
| File Number: | ADC 4611 of 2013 |
| Judgment of: | Judge Brown |
| Hearing date: | 18 November 2014 |
| Date of Last Submission: | 18 November 2014 |
| Delivered at: | Adelaide |
| Delivered on: | 9 December 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bowler |
| Solicitors for the Applicant: | S E Lawyers |
| Counsel for the Respondent: | Mr Anderson |
| Solicitors for the Respondent: | David Burrell & Co |
ORDERS
The parties’ completing application be fixed for final hearing on 22, 23 and 24 April 2015.
The parties jointly instruct a suitably qualified expert, to be agreed between them and failing agreement to be appointed by the court, to prepare a family assessment report, at their joint expense, with the report to be completed no later than 13 March 2015.
The proceedings be adjourned for further directions to 23 March 2015 at 9.30 am.
UNTIL FURTHER OR OTHER ORDER
The parties have equal shared parental responsibilities for the children of the marriage X born (omitted) and Y born (omitted) 2010 (hereinafter referred to as “the children”).
The children live with the mother.
The children spend time with the father as follows:
(a)During school terms:
(i)Each alternate weekend from 5.00 pm Saturday until the commencement of school/child care the following Tuesday;
(ii)In the other week of each fortnight from the conclusion of school/child care on Monday until commencement of school/child care the following Tuesday.
(b)During the end of year school holidays 2014/2015, subject to the arrangement for Christmas hereunder:
(i) In weeks 1, 3 and 5 of the holiday from 9.00 am Sunday until 9.00 am the following Friday;
The children spend from 12 midday 24 December 2014 until 12 midday 25 December 2014 with the father and from 12 midday 25 December 2014 until 12 midday 26 December 2014 with the mother.
Orders 2, 3, 4 and 5 of the orders made 20 December 2013 placing the names of the children on the Airport Watch List and restraining the parties from removing the children from the Commonwealth of Australia continue.
The mother and father are each restrained and an injunction issues restraining each of them from denigrating the other in the presence or hearing of the children or from permitting any other person to do so.
The mother and father are each restrained and an injunction issues restraining each of them from discussing these proceedings in the presence or hearing of the children or from permitting any other person to do so.
The mother and father shall:
(a)keep the other parent informed at all times of his/her residential address and contact details, including mobile and landline telephone numbers and email address;
(b)keep the other parent informed of the names and addresses of any treating medical or other allied health practitioner who treats the child and authorise such practitioners to provide the other parent with information that they (the applicable medical or other allied health practitioners) are lawfully able to provide about the child; and
(c)inform the other parent as soon as is reasonably practical of any medical issue, significant health issue or significant illness or injury suffered by the child. This order authorises any treating medical practitioner to release details of the child’s medical condition and/or injury to the other parent.
The parents authorise by this order, the school, attended by the child to give each parent information about the child’s educational progress and other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the child (at the expense of the parent requesting same).
Each parent is at liberty to attend at the child’s school, pre-school or kindergarten for all events that are routinely attended by parents, including parent-teacher interviews, sports days and concerts.
The father’s interim application to travel overseas with the children is dismissed but the issue of overseas travel for the children remains a live issue at trial.
IT IS NOTED that publication of this judgment under the pseudonym Kaur & Kaur is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 4611 of 2013
| MR KAUR |
Applicant
And
| MS KAUR |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Kaur “the father” and Ms Kaur “the mother” are the parents of X born (omitted) 2007 (currently aged seven years) and Y born (omitted) 2010 (currently aged four and a half years).
As the names of all concerned suggest, the family has an Indian heritage. The parties married in (omitted) India, in (omitted) of 2001. They migrated to Australia in June 2005 and have lived in Adelaide since that time. Both children were born in Australia.
Both Mr Kaur and Ms Kaur are now Australian citizens. Ms Kaur has an employment history in (occupation omitted). Mr Kaur is a self-employed businessman, who is involved in (occupation omitted). He operates a shop in (omitted), Adelaide.
The marriage between the parties ended, in difficult circumstances, in March of 2013. However, the parties remained separated, but living under the same roof, at their former family home, situated at Property P.
This remained the situation until June of 2014, when the father moved to rented accommodation, situated at (omitted). He claims he was forced out of the Property P property because the mother made untrue claims of family violence against him.
The father commenced the proceedings in December of 2013. At this stage, he wished the court to make an order restraining the mother from relocating, with the children, to rural Victoria, where she had obtained a job with a (employer omitted), commencing on 16 December 2013.
In support of his application, Mr Kaur deposed that, although the parties were separated, he remained actively involved in the care of the two children concerned, as a consequence of his continued occupation of the Property P property.
He further deposed that X was due to commence primary school at (omitted) College (after attending pre-school there in 2013) at the commencement of the 2014 school year and that Y regularly attended at a child care centre, where he had made many friends.
Essentially, he asserted that the children were well-settled in Adelaide, where they had always had a close and loving relationship with him and it would be potentially very disruptive for them, to move interstate at short notice, particularly given that he had not agreed to the mother relocating the children.
In response, the mother deposed that she had been retrenched in July 2013 and thereafter had unsuccessfully applied for approximately one hundred positions in Adelaide. She was highly critical of the father’s economic management of both his business and the affairs of the family and asserted that the family was facing a financial crisis, which required her to return to the workforce, as soon as possible, regardless of any potential disruptions which might arise.
It was further the mother’s case that the father had had “minimal” involvement with the two children concerned. Rather she asserted that she had always been the children’s main provider of care, notwithstanding her previous involvement in the paid workforce. At this stage, it was her position that her mother had travelled from India to assist her with the care of the two children.
As matters transpired, it was not necessary for the court to adjudicate the difficult issue as to whether the children should move, in tandem with their mother, to Victoria. This was because Ms Kaur was able to obtain a position, in Adelaide, which commenced in January of 2014.
Interestingly, prior to Ms Kaur obtaining her position in Adelaide, she proposed that she could commute between Adelaide and Melbourne, so that the children could continue to live in the former family home, whilst she pursued her employment opportunity in Victoria.
In these circumstances, she envisaged Mr Kaur providing care for the children during the week, albeit in conjunction with her mother, with Ms Kaur to resume her parenting duties on weekends. Mr Kaur categorises this proposal, which obviously did not eventuate, as being inconsistent with the mother’s current position that he is a disinterested and incompetent parent.
Although the issue which had initially provided the catalyst for the proceedings was able to be resolved, relations between the parties have remained fraught with difficulties and mutual mistrust in the period since, particularly whilst they continued to occupy the Property P home.
Essentially, it is the father’s position that the mother is intent on undermining and restricting his historically sound relationship with the children to service her own emotional needs. He asserts that she has taken whatever opportunities are available to her to both physically and emotionally insert herself between the children and their father.
On the other hand, the mother portrays the father as a coercive and controlling person, who is bitter because she has ended the marriage between them. She alleges that the father is feigning interest in spending time with the children in order to upset her. It is further the mother’s case that the father has worked long hours, in his business, and continues to do so, with the consequence that he has a distant relationship with the children concerned.
In his initiating application, Mr Kaur also sought orders to place the children’s names on the airport watch list. He did not provide any formal evidence as to why this should occur. An order, to this effect, was made, with the consent of each of the parties, on 20 December 2013.
Since the end of 2013, the case has had an uneasy passage through the processes of the court. In February of 2014, the mother joined applications relating to the settlement of matrimonial property issues to the children’s proceedings. As a consequence, the matter was referred to a conciliation conference, which was later adjourned.
From each party’s perspective, it was extremely difficult for them to remain living in the same premises. It was Ms Kaur’s view that this situation was emotionally detrimental for the children, particularly as she alleges Mr Kaur was verbally abusive towards her, at times in the presence of the children.
In this situation, Mr Kaur acknowledged that he physically saw the children regularly, if not on a daily basis. However, it was his view that it was extremely artificial for him to be required to maintain a relationship with the children, subject to the mother’s constant scrutiny and her obvious disapproval of him. In these circumstances, he sought to carve out some individual time for him to spend with the children.
On the other hand, it was the mother’s position that, although difficult, the situation was a workable one. She asserted that she was capable of maintaining parental appearances, for the sake of the children. In these circumstances, she hoped that she and Mr Kaur could properly perform their respective parental roles, within the Property P home, in order to provide the children with a sense that, although their parents were separated, they remained a family.
The impression I have is that neither wished to move out of the family home. Certainly, the mother’s preference was that she should retain the Property P property and it should remain the children’s predominant place of residence. It was apparent that the property was subject to a significant level of debt.
On 24 January 2014, over the mother’s objections, I ordered that the father spend time with the children, on each Sunday, between 10:00am and 5:00pm, without the mother being present. At the time, I appreciated that this was an artificial situation, which impliedly required either the mother to leave the Property P property or for the father and the children to go out together.
In addition, I made orders authorising Mr Kaur to take the children to and from school and/or kindergarten on each Monday and Friday. Again, the intention was to allow Mr Kaur to be involved in day to day arrangements, for X and Y, independently of the mother.
This extremely uneasy situation came to an end in mid-May of 2014. On this occasion, police attended the Property P property in response to a complaint from Ms Kaur that she had been assaulted and abused by the father during the course of 2014.
In a statement made by her to police, she complained that Mr Kaur had, on occasions, whilst the two shared the occupation of the Property P property, abused her in Hindi as well as having pushed and jostled her. In addition she alleged that Mr Kaur had deliberately kicking a soccer ball, at her, whilst playing with the children, which had caused her injury.
As a consequence of this complaint, Mr Kaur had been charged with various counts of assault but had been released on bail. In addition, an interim intervention order has been made against him. The father is contesting the validity of the interim order and a more detailed examination of the issues pertaining to it has apparently been listed for final hearing in early 2015.
It is the husband’s position that the various allegations, made against him, were invented by Ms Kaur in order to secure his ejection from the Property P home. Against this background, as previously indicated, the father has obtained rented accommodation in (omitted).
More recently again, in October of 2014, the father has deposed that the police have determined to withdraw the criminal charges against him. In his submission, this adds substance to his assertion that there was no factual basis to the mother’s allegations against him. In all these circumstances, it would seem more likely than not, that a significant level of tension and mistrust remains between the parties.
On 20 September 2014, the parties attended a financial mediation conference in respect of the property issues between them. At this conference, they were apparently able to reach an in principle agreement. However, at the present time, their agreement has not been formalised, but apparently remains in place.
As part of the agreement, the Property P property is to be sold and it is anticipated that Mr Kaur will receive a sum of approximately $30,000.00. Issues in respect of the children remain controversial. As yet, there has been no independent and expert assessment of the children’s emotional needs and their relationship with each of their parents. In this context, it is now necessary to outline the respective positions of the parties and delineate the various issues which require the court’s immediate ruling.
The current applications
On 10 June 2014, following the father’s departure from the Property P property, orders were made for him to spend time with X and Y, during school terms, on alternate weekends, from 5:00pm Saturday until the commencement of school or childcare the following Tuesday and in the other week of each school fortnight from the conclusion of school or childcare on each alternate Monday until 7:00pm.
In addition, by agreement between the parties, the father spent block periods of time with the children, in two distinct periods, one of which was for a duration of around seven days, which occurred during the mid-year school holiday of 2014.
The matter returned to court on 15 September 2014, following the financial mediation conference, on which occasion orders were made for the father to spend a further block period of time with the children between 27 September and 3 October. Given the extent of these agreements, I was hopeful that there were prospects for the easing of tensions between the parties and for final parenting orders to be made as a consequence of negotiation.
In this context, on 15 September 2014, the mother indicated a desire to travel with the children, to India, for a period of approximately three weeks during the forthcoming end of school holidays. She deposed that she had provisionally booked tickets to allow this travel to occur.
The father indicated that he has no objection to this travel, provided that he too was able to spend time with X and Y, in India, in the company of members of their paternal family. Although earlier he had apparently opposed the children travelling to India, he now proposed that he would collect the children from the mother, at some agreed location in India, so he could spend time with them there.
At this stage, perhaps naively, I thought it possible, given that each party obviously valued the likely benefit arising for the children of spending time, in India, with extended family members and being exposed to the ancient culture of India, it was likely that a consent order could be negotiated in respect of the issue of overseas travel. On this basis, the proceedings were adjourned until 21 October 2014.
My optimism proved to be misplaced. When the matter returned to court, on 21 October 2014, the mother indicated to the court that she no longer wished to pursue her plan to travel with the children to India and further opposed the father’s plans in this regard.
In his amended application, filed on 6 June 2014, the father seeks orders that the parties have equal shared parental responsibility for X and Y and that the children live in what is commonly called a shared care arrangement.
In addition, he seeks orders that the school holidays be divided evenly between the parties and that specific orders are made in respect of special occasions, including Diwali, the Hindu festival of lights.
In her amended response, filed on 3 June 2014, the mother also advocates the sharing of parental responsibility for the children but proposes that X and Y should live predominantly with her and spend time, on alternate weekends, with their father, during term time and weekly for the purposes of an evening meal. It is her position that the children should spend one week, with their father, during each school holiday, including the end of year holiday.
More recently again, the father has further amended his position. In an affidavit filed by him on 16 October 2014, he deposes that he no longer seeks an equal time arrangement. Rather, he seeks that his time with the children be extended on the alternate Monday from after school until Wednesday, during school terms. This would result in him spending time with the children for four nights per fortnight, as opposed to three nights, as occurs pursuant to the current regime.
Given the polarised positions of the parties, on 21October 2014, I made the following order:
“The interim applications in respect of overseas travel and whether the father’s time should be extended and whether the matter should be fixed for final hearing and a family assessment report needing to be obtained is adjourned to 18 November 2014 at 2:15pm.”
In order to allow me to adjudicate these issues, I directed that each party file a further affidavit, including details of the specific orders sought, prior to the date scheduled for the interim hearing. Each party has filed the affidavit required.
In addition, the father has filed an application in a case in which he seeks the following orders:
“That the husband be at liberty to travel to India (and any necessary stopover location) with the children X born (omitted) 2007 and Y born (omitted) 2010 from the period 4 January 2015 to 23 January 2015.
That the passports for the said children be forthwith released to the husband.
That within 48 hours of the husband’s return to Australia, the said children’s passports be lodged by the husband at this Honourable Court.
In the event that one or both of the children’s passports have expired, the wife will sign all documentation necessary to obtain replacement passports within 48 hours of receipt of the said documentation from the husband.
The husband shall pay the costs of the issuing of any replacement passports for the said children that may be required.
That the husband provide to the wife a full travel itinerary and evidence of the purchase of return airfares for himself and the said children no later than 14 days prior to his proposed departure.
That the husband shall facilitate Skype communication between the mother and the children on two occasions per week during their absence from Australia.”[1]
[1] See application in a case filed 3 November 2014
The mother has filed a response to this application in which she seeks the dismissal of the application and costs. Neither party has specifically delineated orders in respect of any extension or otherwise of the father’s time with the children.
The father’s position
The father envisages travelling, with the children, from Adelaide to (omitted) India, via Singapore. As I understand matters, he has not as yet booked the necessary tickets, pending the outcome of these proceedings. Upon arrival in (omitted) India, the father plans to travel to his brother’s home, which is located approximately 25km from (omitted) India. His brother is a (occupation omitted) of the (omitted), who hold a position which is analogous to a (omitted) in this country. The father’s sister-in-law is a prominent (occupation omitted).
As a consequence of his (omitted) position, the applicant’s brother lives in an (omitted) residence, which is serviced by a staff of six. The effect of the applicant’s evidence is that this is a very comfortable and secure home. Besides the children’s aunt and uncle, the premises are occupied by their children, who are aged fourteen and twelve years respectively.
It is Mr Kaur’s intention that X and Y will stay with their aunt, uncle and cousins for most of the holiday and will be visited by their grandparents and the applicant’s sister and her children, who are fourteen and six years respectively.
As well as staying with his brother, the applicant anticipates being able to travel to his home town, (omitted), in the (omitted), which is approximately 300km from (omitted) India. This will give the children the opportunity to visit their paternal grandparents’ home and meet some of the father’s close friends. It is Mr Kaur’s evidence that the particular provinces in India, where he proposes to travel with the children, are safe and not subject to any particular degree of political unrest.
The applicant’s main reason for wishing to travel, with the children, to India, is so that they may have some direct experience of their Indian cultural background and spend quality time with paternal family members. Up to this stage the children have not visited India, although members of their maternal family have visited them in Australia. In these circumstances, the children do not have any direct knowledge or experience of their paternal grandparents.
Mr Kaur deposes that his father is suffering from Parkinson’s disease. As a consequence of the disease, the paternal grandfather tires easily and is therefore precluded from travelling to Australia. From Mr Kaur’s perspective, this emphasises the need for the children to be able to travel to India sooner rather than later.
It remains the father’s position that the mother is intent on restricting his level of relationship with the children and her opposition to the proposed travel to India is a further example of this. In support of his position, he points to the fact that he voluntarily migrated to Australia and has now become an Australian citizen. He describes himself as happy and well settled in Adelaide, where he has lived for approximately nine years. During this period, he attests to having formed many close friends within the Australian community.
In his affidavit, the father deposes as follows:
“I say there is no basis whatsoever to any allegations that the wife may make that I constitute a flight risk. As previously deposed to herein, the wife and I migrated to Australia by mutual consent to pursue the employment and lifestyle opportunities that exist here. I say that while I deeply value my Indian heritage, life in Australia is superior in all regards inclusive of but not limited to employment, health and education. I only want the best for our sons and I want them to benefit from all the opportunities that Australia has to offer.”[2]
[2] See affidavit of Mr Kaur filed 3 November 2014 at paragraph 31
In addition, Mr Kaur deposes that he has significant business interests in Adelaide. He acknowledges that business has been poor of late, but asserts that the retail market has turned upward recently. As previously indicated, the father is prepared to provide his share of the proceeds of sale of the former family home to the wife as a surety. This sum will be a little less than $30,000.00.
Counsel for the father, Mr Bowler, characterises the mother’s contention that Mr Kaur is liable to abscond, with X and Y, to India as a baseless allegation which is made without any satisfactory or objectively reasonable evidentiary basis. Essentially, Mr Kaur asserts that he is not the sought of person who would callously abduct the children, with the intent of destroying their loving relationship with their mother and uprooting them from the home, which they have always known and which offers them great opportunities.
In this regard, Mr Kaur deposes as follows:
“I say that in spite of the wife’s attitude towards my role as a parent, I appreciate the absolute importance of her role in our son’s lives. I grew up in a loving household where my parents both played an active role in my upbringing. Even though the wife and I have now separated I would never attempt to deprive our sons of the benefit of their mother. I would never seek to deprive our sons of their loving relationship with their mother by failing to return them to Australia.”[3]
[3] Ibid at paragraph 37
In respect of the extension of his time, with the children, during school terms, the father relies on his earlier affidavit filed on 16 October 2014, in which he deposed as follows:
“I say that I now seek that my time be extended on the alternate Monday from after school until 9am Wednesday during the school term (ie, 2 nights). The end result is that the children will be in my care for 5 nights per fortnight, as opposed to 3 nights per fortnight as per the current order. I further seek orders that the children be returned to my care when the wife travels for work.”[4]
[4] See affidavit of Mr Kaur filed 16 October 2014 at paragraph 6
The mother’s position
The mother is opposed to their being any extension in respect of the periods of time, which the father and children are currently spending together. It is her view that the children, particularly Y, are too young to be separated from her for any lengthy period of time.
Ms Kaur asserts that the current arrangement is working reasonably well and, as such, it would be imprudent to depart from it, certainly until the children have had more time to settle into it and there has been a more detailed and independent assessment of X and Y’s needs, in the form of a family assessment.
In this context, Ms Kaur adopts the comments of Family Consultant Ms K, who met with the parties, in a child dispute conference, on 29 May 2014. At this stage, Ms K noted a level of covert hostility between the parties, with little or no communication between them. In these circumstances, Ms K did not believe that a shared care regime was a viable outcome for the children, as it had the potential to destabilise the children’s psychological well-being.
It is Ms Kaur’s position that a significant level of mistrust continues to exist between her and the father. In these circumstances, she deposes that she is gravely concerned that Mr Kaur will not return the children to Australia, notwithstanding any order made by this court. Her fears are heightened by the fact that India is not a signatory to the Convention on International Child Abduction.[5]
[5] The Civil Aspects of Child Abduction signed at the Hague on 25 October 1980
In these circumstances, Ms Kaur fears that if the children are retained in India, she will be powerless to obtain their return to Australia. She would categorise the father’s family, particularly his brother, as being rich and well-connected within the upper echelons of Indian society. In these circumstances, she has no confidence in the impartiality and effectiveness of the Indian legal system.
There is some substance to the father’s submission that the mother’s fears, in this regard, are inchoate. In my view, I must be careful not to adopt stereotypical views regarding the Indian legal system. I have no direct evidence in regards to what principals would apply to the making of orders in respect of children, who bear Australian nationality, such as X and Y.
In addition, the mother is not able to point to any explicit line of conduct, on Mr Kaur’s part, which would indicate an intent, on his part, permanently to deprive the children of a proper level of relationship with their mother, other than that the parties have had and continue to have a mistrustful and acerbic relationship with one another.
In particular, it is said that there is no evidence, on which Ms Kaur relies, of Mr Kaur making any explicit threats to abscond with the children or deny them their relationship with their mother or indeed travel with them to India, other than that he has opportunistically raised the issue, when the mother herself has indicated a desire to travel there.
In short Mr Kaur asserts that there is no cogent evidence to indicate that he is the cunning and malevolent person, who would callously harm both the children and their mother by denying X and Y the security of their home in suburban Adelaide. As such, Ms Kaur’s objection to the travel, on the basis of non-return can only be categorised as a hysterical over-reaction.
Ms Kaur asserts that the father has powerful financial incentives for not wanting to return to Australia. She categorises his business as being insolvent and has supplied an accounting letter which indicates its current debts far outweigh its potential worth and the monies he is due to receive from the sale of the former family home. It is her position that the father has a history of “fleeing his financial difficulties”. In all these circumstances, she asserts that the proposed surety is insufficient to guarantee the father’s return of the children to Australia.
Whilst conceding that the children are likely to benefit from spending time in India and meeting members of their wider families in that country, Ms Kaur believes that such a trip, with their father at this time, is premature, given the ages of the children and the fact that hitherto they have not spent more than a week with their father.
Finally, the mother contends that she has no confidence that the father would abide by any order requiring the children to regularly skype or telephone her whilst outside of Australia. As such, she believes that the children would be emotionally discomforted by not being able to touch base with her regularly and are simply too young for such a long trip away from their major source of emotional support.
However, her major concern remains the risk that the father will simply not return the children to Australia and, in the absence of any formal relationship between India and Australia about such matters, she will be powerless to secure the repatriation of the children to Australia.
The legal considerations applicable
As the parties are aware, the matter has been listed before the court on the basis that the difficult issue relating to the father’s desire to travel overseas, to India, with the children can be determined on the basis of a consideration of the affidavit material alone, without any additional oral evidence or cross-examination.
It is theoretically through such a process of cross-examination that a person placed in my position, discharging a judicial function, should be able to make findings regarding the credit or honesty of the parties concerned and consider the actions which have motivated them in the case to date. In the absence of such cross-examination, it is difficult, if not impossible for me to determine the ultimate truthfulness of the parties.
The mother’s case relies on her assertion that the father is not a person of his word and, as such, is capable of doing great harm, both to her and the children, presumably out of spite or to gain the upper hand over her. The father denies that this is the case. He refutes any categorisation of himself as a person who would dissemble, both to the court and the mother, in order to secret the children permanently out of Australia.
Even if cross-examination had occurred in the case, it is doubtful whether it would have allowed the court to determine this issue definitively. Witnesses frequently lie on oath, very often convincingly. I would be naïve to think that cross-examination, of itself, provides a window into the heart or mind of any human being. Necessarily, human nature is capable of throwing up endless surprises and unanticipated aberrations from the norm of ordinary human behaviour.
This is particularly so in this case. I cannot rule it as impossible that Mr Kaur is not a person of his word and so will not honour his promise to return to Australia with X and Y. As Cronin J said in Gin & Hang:[6]
“Decisions about international travel are difficult to make because no-one can foretell the future and the decision I have to make here amounts to a leap of faith. The Court determines discretionary matters within the framework of the evidence that it is presented.”
[6] Gin & Hang [2010] FamCA 617
It is the responsibility of the court to attempt to quantify the degree of risk, arising for X and Y, from travelling, in the company of their father, to India, and then not returning to Australia, in an objective and rational manner and determine if the risk arising is one which would not be reasonable for the court to accept, in all the circumstances prevailing, after having balanced that risk against any benefits which the children are likely to otherwise derive from the travel overall.
It would be neither rational nor objective for me to determine, because there was some degree of risk of non-return, which in an intellectual sense can never be completely discounted, that the travel should not be permitted.
This is particularly so given that Ms Kaur has conceded that there are likely to be significant benefits for X and Y of travelling to India, a country of great cultural significance to them, given their background. She could hardly contend otherwise, given she herself wanted to take the children to India, in part so that they could experience the country for themselves.
As previously indicated, it is the mother’s position that the children are currently too young to be separated from her for a period of around three weeks. Her position is posited on her assertion that she has always been the children’s primary carer. This is a contention which Mr Kaur does not accept. He portrays himself as an active and involved parent, certainly up until the time the parties separated.
As the parties are well aware, at this interim stage, I do not have access to any independent and expert assessment of the needs of the children themselves, in the form of a family report. In cases involving arrangements for children, particularly when the positions of their parents are conflicted and hostile, such family reports play a crucial role in the determination of such cases.
In particular, at this interim stage, I do not have any independent assessment of how the children are likely to cope, with the exigencies of overseas travel and being away from their mother, for around three weeks, in circumstances in which it is clearly the case that she has played a very significant role in providing care for them.
The parties have asked me to fix their competing applications, in respect of X and Y, for final hearing. In this context, they agree that they will obtain their own family assessment report. The absence of this report, at this stage, is an important factor which militates in favour of deferring the difficult issue of overseas travel until such time as it is available and the potential emotional impact, on the children, of such travel is independently assessed.
Part VII is the part of the Family Law Act 1975, which deals with the law relating to arrangements for the care of children. The chief means by which the court deals with such arrangements is through the making of a parenting order [Family Law Act section 64B].
Amongst other things, a parenting order may deal with any aspect of a child’s care, welfare and development or any aspect which relates to the exercise of parental responsibility for that child.
Accordingly, the issue of whether the children concerned in this case should or should not travel to India (or indeed any other location outside of Australia) is capable of being the subject of a parenting order, particularly as the parents concerned in this case are unable to resolve the issue themselves [see section 64B(2)(h) & (i)].
The best interests of any child concerned are the paramount or most important consideration [section 60CA] in making any parenting order. Fundamentally, the court must decide whether it is in X and Y’s best interests to travel outside of Australia. Necessarily, given the structure of the Act, this is a multi-faceted inquiry.
At the commencement of Part VII is a list of aims and principles, which the court is directed to apply, to ensure that a child’s best interests are met through any orders it makes. The list of objects or aims of the legislation is set out in s.60B(1). They are as follows:
“(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
The principles, which underpin these objects, are set out in s.60B(2) and are as follows:
“(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
In considering the children’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and additional considerations.
There are two primary considerations – firstly the need to ensure that the children concerned have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another. They have been referred to, in a number of decisions of the Family Court, as twin pillars, the importance of which depends on the circumstance of the case concerned.
However, as a result of the insertion of section 60CC(2A) into the Act the court is now directed, “in applying the primary considerations… to give greater weight to section 60CC(2)(b).” This, of course, is the consideration dealing with abuse, neglect and family violence. These considerations are now to be given priority.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned.
Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
Given the importance, which the applicable legislation places on the co-involvement of parents in their child’s life and development there is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].
The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so in all these circumstances prevailing [section 61DA(3)].
Section 61DA deals with the allocation of parental responsibility in respect of a child. It does not deal directly with more practical aspects of a child’s life, particularly the amount and type of time a child spends with his or her parents or where a child is to live. Such matters are dealt with by section 65DAA.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
The expression “substantial and significant time” is defined in the Family Law Act 1975 [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned.
Again, the aim of the legislation is to enhance the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
The High Court has recently considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable, which arises from s.65DAA(1) & (2) of the Act. It has determined that both questions must be answered in the affirmative before an equal time order may be made.
The High Court has held that it is a statutory pre-condition of the making of an equal time order that it is reasonably practicable for such an order to be made. Accordingly courts such as this are directed to consider the reality of the situation which confronts parents and child not merely whether it is desirable that there be equal time spent by the child with each parent. Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[7]
[7] See MRR v GR (2010) 240 CLR 461 at [13] & [15]
Neither party has specified, with any great legal precision, what orders they seek in respect of parental responsibility, other than that it be joint. I assume however that Mr Kaur wishes the presumption to be applied and that therefore the court should give earnest consideration to his preferred regime for the children. Equally, I assume that Ms Kaur considers that such a regime is neither likely to be in the children’s best interests nor reasonable feasible to put into operation given the parties’ poor communication and mistrust of one another.
The legal principles to do with a child travelling outside Australia, in the company of one of his or her parents, in circumstances where the other parent concerned opposes that travel, are complex.
Fundamentally, the court must determine whether the travel proposed is likely, on balance, to be in the child’s best interests according to the criteria specified in section 60CC, within the overall matrix of objects and principles set out in section 60B.
Necessarily this exercise must invoke the weighing and assessing of competing considerations and the balancing of the applicable section 60CC factors, both primary and additional.
In considering the overseas travel proposed, the court must obviously turn its mind to the potential impact the travel may have on the ability of the child concerned to have a meaningful relationship with the other of his or her parents [section 60CC(2)(a) & (3)(b)].
Clearly if a parent absconds with a child overseas, such an action must have the most serious implications for the nature of the relationship the child has with the parent left behind. Such considerations raise the following practical issues and criteria:
·the length of the proposed stay out of the jurisdiction;
·the bona fides of the application;
·the effects on the child concerned of any deprivation of time spent with the parent who remains in Australia;
·any threats to the welfare of the child concerned by the circumstances of the proposed environment overseas;
·the degree of satisfaction which the court has that a promise made by a party to return to Australia will in fact be honoured.[8]
[8] See Kuebler & Kuebler (1978) FLC 90-434 at page 72,205
Fundamentally, the court must also make some assessment of whether there is any risk that the child concerned will not be returned to Australia, in spite of undertakings to the contrary. Obviously, such a possibility has potentially very serious ramifications for the child concerned. It may result in the severance of his or her relationship with one aspect of his or her family.
In Line & Line the Full Court of the Family Court indicated that there are a range of circumstances which the court should take into account in assessing the degree of risk that a travelling parent will not return any child concerned to Australia. These factors include the following:
·the existence (or otherwise) of continuing ties between the departing parent and Australia, such as the ownership of real property; the existence of business interest; or the residence of family or close friends in the country;
·the existence and strength of possible motives not to return, which included the level of conflict between the parties concerned, particularly over child related issues;
·the existence and strength of possible motives to remain in the country of proposed travel, again including such things as possession of property; business interests; and the existence of familial and personal ties.
In such circumstances, the court is required to consider whether it is appropriate to impose conditions or impose securities to ensure the return of the child concerned to Australia. In determining whether some form of security should be imposed, the court is directed to consider the following factors:
·in fixing the sum of money as security, whether the sum is such as to realistically entice the person removing the child to return to Australia and also to adequately provision the party remaining in Australia to take action for the return of the child, if necessary.
·the degree of risk that the departing parent will not return to Australia.
·whether the country of travel is a signatory to the Hague Convention and the likelihood of deviation to a non-convention country.
·the financial circumstances of both parties and any hardship to either party if the level of security is increased or decreased.[9]
[9] See Line & Line (1997) FLC 92-729 at 83,846
Both Mr Kaur and Ms Kaur are now Australian citizens, who voluntarily chose to come to Australia. They have lived in this country since 2005. It is a significant period of time, during which they have bought a house together and enrolled their older child in a private school.
Clearly, both parties continue to remain connected to the country of their birth, where each has significant family connections. However, it is the position of both the father and the mother that they believe that X and Y are likely to have better opportunities in Australia, where each child is well settled. In my assessment, there is no cogent evidence available to me to indicate that Mr Kaur is feigning his views in this regard.
In these circumstances, I would assess the risk of the father not returning the children to Australia as being slight. It is, however, not non-existent. The relationship between the parties remains poor and highly competitive. It is also the case that the father has some incentive to leave his significant debts behind him.
In this context, I hasten to say that I have available to me no evidence to indicate that the father is, in any way, a financially dishonourable person. For obvious reasons, the mother is likely to over-state the degree of risk arising and be emotionally vulnerable to it. Essentially, she is not the best person to assess the degree of risk in a dispassionate and objective manner.
In this day and age, $30,000.00 is a significant sum of money. The father is not in a position to forego such a sum of money, given his current circumstances, particularly the fact that his business has trade creditors of around $139,000.00 and other debts of around $85,000.00. In these circumstances, the father’s financial circumstances do leave me with a significant sense of disquiet.
Although the father cannot afford to lose the sum proffered by him as security and the sum must be regarded as significant, it pales into insignificance when compared with his liabilities. In this context, I must closely consider the absence of any treaty obligations between Australia and India in respect of abducted children. I am not in a position to reject outright the mother’s contention that she would experience significant impediments in securing the return of the children to Australia through the conventional Indian legal system. In addition, I have no way of assessing the adequacy of such a sum to provision the mother to prosecute such an application.
Accordingly, although I concede that there is substance to the father’s contention that the mother’s position is one to be characterised as hysterical in its reaction to her inchoate anxieties, I do not think that the mother’s obvious anxieties can, in turn, be characterised as being completely baseless, particularly given the obvious lack of trust between the parties.
I accept that both X and Y have a close and loving relationship, with each of their parents [section 60CC(3)(b)]. In this context, I also acknowledge that it is likely to be significant change for the children, if they are separated from one of their parents for an extended period of time [section 60CC(3)(d)].
In this context, the ages of the children are relevant, particularly so far as Y is concerned. He is not yet five years of age. In these circumstances, I share the mother’s concerns that the proposed trip may be of excessive duration for him. As I have already pointed out, I do not, as yet, have any independent and expert assessment of the likely impact of the trip on the children.
In my view, this is a significant consideration. The father opportunistically raised his desire to travel to India with the children, when the mother herself raised the issue. Up until this stage, the father had not expressed any such desire and had, in fact, opposed any such travel, hence the making of the Airport Watch order, at his instigation.
Apart from the infirmity of his father, Mr Kaur can point to no particular urgency in respect of his desired travel. In my view, this is a factor which militates in favour of a deferral of the issue until there can be a more thorough and nuanced inquiry into the matter, at the final hearing stage.
If the trip proceeds, X and Y will be exposed to a different language, cuisine and culture in India. They are children who stem from India and are likely to be regarded as Indian children by the Australian mainstream. It is likely to be beneficial to them to have their own direct experience of the culture from which they and their parent derive.
The historical and cultural content implicit in such an experience is necessarily very different to the social setting in which the children normally live, in suburban Adelaide and can be summed up by the aphorism “travel broadens the mind”. The culture of India is an ancient, diverse and rich one.
In assessing a child’s best interest, I am directed to consider the particular background of the child concerned, which is taken to include the lifestyle, culture and traditions and any relevant characteristic of both the child and his/her parents [section 60CC(3)(g)].
The guiding hand of the legislature can be seen in section 60B, where the objects and principles of Part VII are set out. These principles (set out in full above) emphasise the entitlement of children to spend time with their relatives, particularly grandparents and speak of their right to enjoy their cultural background with other relatives who share that culture with them.
Cultural background is important to children. It provides them with a sense of identity. Identity very often comes from a child knowing relatives, on both the paternal and maternal aspects of his or her family and placing those relatives within a cultural context. In addition, overseas travel, particularly to meet family, can be a rich experience for children, the memory of which can last a life time.
It is a strong theme of the father’s case that it will be beneficial for X and Y to have the opportunity to interact with members of their paternal family, in the cultural milieu applicable to them, and from which they themselves derive, namely the (omitted) region of India. I accept that this is so.
As such, I accept that there are likely to be some educational benefits, for the children, arising from the travel. I accept that these benefits are difficult to quantify in concrete terms. However, in my view, just the experience of such things as travelling to a different country; eating different foods; and hearing a different language spoken; is likely to broaden the children’s minds. So, it will give them a different perspective on life.
As I have indicated, the Family Law Act emphasises the centrality of all significant relatives, to children, as they grow and develop. The father’s proposal envisages the children staying with their paternal uncle and his wife and their cousins. Mr Kaur also wishes the children to be given an opportunity to meet their paternal grandparents.
This will give X and Y an opportunity to understand where they fit in in their wider Indian family. In general terms, children do better if they understand that they are part of a wider family, comprised of grandparents on both paternal and maternal sides, uncles and aunts, cousins and the like.[10]
[10] See Bright v Bright (1995) FLC 92-570 at 81,658
It is a significant part of the father’s case that the children do not know their paternal Indian family at all but do have a degree of familiarity with members of their maternal Indian family. On his case, the time is now ripe for these relationships to be kindled, particularly given the infirmity of his father. In this context, the ages of the children, at present, are relevant. In both a cultural and familial sense, the benefits of the children spending time in India are likely to accrue as they grow older.
Given the polarised nature of the parties’ respective positions and their inability to reach any form of compromise, it is impossible for the court to fashion an outcome, which will satisfy the hopes and desires of each of the parents concerned in this case. At this stage, if I accede to the father’s position, the mother is likely to remain highly anxious about the travel and the risk, which I regard as slight but nonetheless a possibility, of the children not returning to Australia.
On the other hand, the father will feel bitter at the prospect of the mother interfering with his plans and aspirations for the children. The difference between the two positions is that it is possible to defer a final consideration of the father’s case until further evidence is available, particularly in the form of a family report and a more detailed testing of each party’s evidence.
Overseas travel, for young children, particularly to a non-Hague Convention country, is potentially a high stakes game, with no margin for error. As such, the court, in making its leap of faith should not jump precipitately, into the dark, on the basis of untested or incomplete evidence, particularly if the need for the travel in question is not a particularly pressing one.
In my view, these comments are apposite to the current matter. In my view, it is premature and unfair to the court to expect it to adjudicate the issue at this interim stage. In addition, I remain concerned at the uncertain impact of the length of travel on the children concerned.
In these circumstances, I propose to defer the issue of overseas travel, from both the father and the mother’s perspective until the final hearing of the matter and more evidence in the form of a family assessment report.
I will fix the matter for final hearing at the earliest date available to me and make the necessary procedural orders, for a family assessment report, to be commissioned at the parties’ joint expense. The hearing dates will be 22, 23 and 24 April 2015.
I anticipate that the family assessment report is likely to take about three months to complete. It is likely to be instructive as to what is the next step to be taken in terms of the extension of the children’s relationship with their father in the current strained circumstances of the family.
The parties’ parenting relationship, with one another, remains fraught with all manner of difficulties. They do not communicate well and each believes that the other is intent on frustrating his or her parenting aspirations.
In these circumstances, I do not believe that it is either likely to be in X or Y’s best interests for there to be an equal time or substantial and significant time regime, regardless of the application or not of the presumption of equal shared parental responsibility, particularly at the interim stage.
I reach this conclusion after having considered the relevant section 60CC factors. Thankfully this is not a case involving allegations of abuse and neglect, although the mother does assert that the father has behaved violently towards her in the past, at times in the presence of the children.
It is also the case that there is currently a family violence order in place, albeit that it is a provisional order, which the father seeks to challenge. As I am pains to point out to the parties, I am not in a position to resolve these raw controversies at this interim stage. However, in my view, these unresolved issues militate against either a shared care regime or a substantial and significant time regime at this point.
However, these considerations do not absolve the court of its obligation to assess how the children are likely to benefit from having a meaningful level of relationship with their father. Clearly both X and Y know their father very well indeed, having shared the same household for almost all of their lives to date. I have no reason to think anything other than the children loves their father and he loves them.
The father approaches the case on the basis that he needs to spend sufficient time with X and Y to ensure that they benefit from their paternal relationship with him. The question of beneficial relationships is not to be considered in a retrospective sense. Rather, the court must look to future benefits, which will come to the child concerned, if his or her parental relationships are enhanced.
The court is required to consider the legislature’s intent that the court should, commensurate with the need to protect a child from harm, ensure any orders that it makes result in both the parents of the child concerned being as involved as fully as possible in their child’s life and care and the child concerned gains the benefits of this involvement.[11]
[11] Goode & Goode (2006) FLC 93-286 at 80,901
The rationale of the amended provisions of Part VII of the Family Law Act 1975 is that children benefit, in an emotional and developmental sense, from feeling that their parents are involved in all aspects of their care, which flow from them being exposed to their parents in a variety of settings. This I take it is the legislature’s intent by its use of the word “meaningful” in section 60CC(2)(a).
These settings include “fun” activities on holidays and weekends – essentially interacting with their parents in a relaxed setting, as well as the day to day reality of the child’s life, such as supervising homework and bedtimes, imposing day to day discipline, collection and delivery to school and sports training – essentially spending time with parents in a more mundane set of situations. In this way, the child concerned is likely to have a more balanced and so richer relationship with each of his or her parents.
Mr Kaur’s application to extend his time with the children is couched in terms of him spending five days per fortnight with the children, rather than the current arrangement of three nights, with an alternate touch base meal meeting in the other week. It is the underpinning of his case that the additional nights will add meaning to his relationship with the children, as he will be a more involved father.
On my view, the increase proposed by the father is a significant one, which must be regarded as being tantamount to substantial and significant time. Indeed the present regime is not that far off such an outcome. At this stage, I have grave reservations that the parties’ parenting relationship can sustain such an advance in the father’s time with the children.
As As Kay J pointed out in Godfrey v Saunders[12] “what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”. In addition, I must bear in mind that both an equal time and a substantial and significant time regime, for children, depend on an affirmative answer to two questions – is the regime in the best interests of the children and is it feasible to implement given the reality of the familial situation of the children concerned.
[12] See Godfrey v Saunders 2008 FLR 287 at 298
On any view, the parenting relationship between the parties is currently extremely strained and mistrustful. The parties do not communicate well and have a fundamentally different view as to how X and Y are currently travelling in an emotional sense. Some of these issues may be clarified by a family assessment report but until such a report is to hand, in my view, it behooves the court to approach the case somewhat cautiously rather than in an experimental fashion.
At this stage, in specific terms, I have no knowledge of what are X and Y’s views, if any, regarding future arrangements for their care [see section 60CC(3)(a)]. In any event, at just over seven years and four and a half years respectively, the children’s views, even if determinable, cannot be decisive.
The children have a close and loving relationship with each of their parents and indeed with one another [see section 60CC(3)(b)]. However they remain children of tender years, particularly Y, who is not yet attending primary school. The children’s ages also militate against any precipitate change in arrangements for their care [see section 60CC(3)(g)].
I am also required to consider the possible implications of any dramatic change in the children’s care arrangements [see section 60CC(3)(d)]. The last few months have been turbulent ones for the parties and so to for their children. The parties are likely to be coming to terms with the new situation of the father having separate accommodation away from the former family home.
Having considered all these factors, including the currently strained relationship between the parties, I have come to the conclusion that X and Y should continue to live predominantly with their mother in the domestic setting which is familiar to them.
However, in my view, it is appropriate that there be a modest advance in the amount of time the children spend with their father, during terms times. In this regard, I propose to extend the father’s time, in the alternate week to the commencement of school the following Tuesday.
In lieu of his proposed travel, with the children to India, I will make orders for the father to spend block periods of time, of up to five days, with X and Y, during the forthcoming school holiday. I have in mind that in the alternate weeks of the six week holiday period, the father should spend from 9.00 am Sunday until 9.00 am Friday with the children. Or to put it another way, he should spend these periods with the children in weeks one, three and five of the holiday.
The period of Christmas is an important time for the vast majority of members of the Australian community, including the members of this family. I will make orders which will ensure that X and Y spend time equally, with both their mother and father, on the festive days of Christmas.
I will also make other orders relating to the parties exchanging information concerning their children and restraining each of them from denigrating the other or discussing these proceedings in the presence of the children. In my view, it is appropriate that both the father and mother be able to attend, as parents do, at regular school functions.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and sixty-nine (169) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 9 December 2014
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