MAINE & MELTON
[2010] FMCAfam 396
•3 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
MAINE & MELTON [2010] FMCAfam 396
FAMILY LAW – Parenting – mother wishes to relocate with child who is 4 years of age to the United Kingdom where both parents resided before they came to live in Australia – consideration of proposals of each of the parents – child’s relationship with each of her parents – the impact on the child’s relationship with her father should the child live with her mother in the United Kingdom, in the event that the father did not also live there – consideration of the father’s proposal for equal time and the father’s availability to spend time with the child.
FAMILY LAW – Property – issues relating to the asset pool – valuation of husband’s shares, stock units and employee share options – consideration of financial contributions and contributions to the welfare of the family.
Family Law Act, ss.60CA, 60CC, 61DA, 65DAA, 75(2), 79
A & A (2000) 26 Fam LR 382
Bolitho v Cohen [2005] FamCA 458
Chappell & Chappell (2008) 39 Fam LR 627
C & C (2005) FLC 93-220
Collu & Rinaldo [2010] FamCAFC 53
Flanagan & Hancock [2001] FamCA 340
Goode & Goode [2006] FamCA 1346
MRR & GR [2010] HCA 4
NHC & RCH [2004] FamCA 633
Norbis & Norbis [1986] FLC 91-712
Rosati & Rosati [1998] FamCA 38
Taylor & Barker (2007) 37 Fam LR 461
U & U (2002) 29 Fam LR 74
The Marriage of Hickey (2003) FLC 93-143
Applicant: MR MAINE
Respondent: MS MELTON
File Number: SYC 3884 of 2008
Judgment of: Walker FM
Hearing dates: 23 & 24 February 2010
Date of Last Submission: 30 March 2010
Delivered at: Sydney
Delivered on: 3 June 2010 REPRESENTATION
Counsel for the Applicant: Mr Tockar
Solicitors for the Applicant: John Quinn & Company
Counsel for the Respondent: Ms Christie
Solicitors for the Respondent: Shepherds The Family Law Specialists THE COURT ORDERS THAT:
Parenting
(1)The parents are to have equal shared parental responsibility for the child, [X] MAINE (“[X]”) born [in] 2006.
(2)The child is to live with the mother.
(3)Unless otherwise agreed, the child is to spend time with the father as set out in Orders 4, 5 and 6 below.
(4)
Until the child commences school:
(a)In week one from 6.00pm on Friday until 9.00am on Monday morning.
(b) In week two, while the child continues to attend pre school, from 2.30pm on Tuesday until before pre school on Wednesday, provided the father is available to care for the child on Tuesday afternoon and Tuesday evening. If the father will be away from home and not able to personally care for the child, he is to give the mother no less than 48 hours notice of such unavailability to spend time with the child.
(c) When the child commences school she is to spend time with her father each alternate weekend from 6.00pm Friday until before school on Tuesday morning.
(d) When the child turns six years of age she is to spend time with her father each alternate weekend from 6.00pm Friday until before school on the following Wednesday morning.
(e) Either the father or his nominee, provided it is a person known to the child, is to collect the child at the commencement of her time with the father. The mother or her nominee, provided that it is a person known to the child, is to collect the child at the end of her time with the father, other than when she is returned to preschool on Wednesdays, on which occasion, unless otherwise agreed, the father or his nominee is responsible for the child’s return to her preschool.
Holiday time
Holiday time with the father until the child commences school
(5)
(a)
The father is permitted to spend time with the child for the purpose of travelling overseas with her for ten days commencing
22 June 2010.
(b) The father is to facilitate the child speaking to the mother each alternate day whilst she is overseas pursuant to order 5(a) above.
(c) In addition to the time provided for in order 5(a) above, before the child commences school, she is to spend two periods of one week, on each occasion, with the father at times to be agreed, and failing agreement, from week one commencing midday 18 December 2010 to midday 25 December 2010 and for a further week from midday 10 January 2011 to midday 17 January 2011.
Holiday time with the father after the child commences school
(d) After the child commences school, she is to spend one half of each school holiday period with each of her parents. Unless otherwise agreed, she is to spend such time with her father for the first half of each school holiday period commencing in an even numbered year, and the second half of each school holiday period commencing in an odd numbered year, subject to Order 5 (d) below.
(e) After the child commences school, she is to spend time with her father in odd numbered years, from 5.00pm on Christmas Day until 5.00pm Boxing Day and in even numbered years from 5.00pm on Christmas Eve until 5.00pm on Christmas Day and with her mother in even numbered years from 5.00pm on Christmas Day until 5.00pm on Boxing Day and in odd numbered years from 5.00pm on Christmas Eve until 5.00pm on Christmas Day.
Special Days
(6)
(a)Should the child not otherwise be with her mother on Mother’s Day she is to spend time with her mother from 10.00am until 5.00pm on that day.
(b) Should the child not otherwise be with her father on Father’s Day, she is to spend time with her father from 10.00am until 5.00pm on that day.
(c) The child is to spend two hours on her birthday with the parent with whom she would not otherwise be spending time with on that day.
(7)The mother is restrained from moving the child’s residence to the United Kingdom.
(8)When the child commences school, she is to be enrolled by her mother in a state school reasonably convenient to where the mother lives, provided that it is not more than an hour’s drive from the father’s present address at [C].
(9)Unless the parents agree otherwise, the child is to remain at her present day care centre until she commences school.
(10)The mother may remove the child from the Commonwealth of Australia for a total period of up to four weeks each year. Such period may include a period during the school term, if approved by the school which the child attends. The mother is to provide travel and contact details to the father at least one month prior to the proposed travel. Any time the father would otherwise spend with the child during this time is to be suspended.
(11)The child [X] MAINE (“[X]”) born [in] 2006 is to be known for all purposes as [X] MELTON-MAINE and this order is sufficient to enable the respondent mother to be able to change the details on the child’s birth certificate and at all institutions and authorities at which the child’s name is recorded.
(12)Each parent with whom the child is spending time is to ensure that she has regular telephone communication with the other parent.
(13)Each parent is authorised to obtain copies of school reports, circulars, newsletters and other school notices from any school attended by the child.
(14)Each parent is to ensure that the other parent has current details of the other parent’s residential address, telephone number and email address.
(15)Each parent is to notify the other of any serious illnesses suffered by the child when in the care of that parent.
Property
(16)
The husband is to pay to the wife the sum of $205,352.47 within
21 days of the making of these orders.
(17)Unless otherwise specified in these orders:
(a)Each party shall be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party at the date of the making of these orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the Bank’s record thereof, insurance policies are deemed to be in the possession of the party named as the life insured, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions or payment out of such entitlements.
(b) Each party shall be solely liable for and indemnify the other in respect of all actions, claims, suits, demands and debts as may be made against that party in relation to all liabilities in the name of the party.
IT IS NOTED that publication of this judgment under the pseudonym Maine & Melton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEYSYC 3884 of 2008
MR MAINE Applicant
And
MS MELTON Respondent
REASONS FOR JUDGMENT
Introduction
1.This is a matter where the parents are in dispute about both parenting and property matters. The parenting dispute concerns in particular the proposal of the mother that their daughter, who is nearly four, live with her in the United Kingdom.
Background
2.The parents are both aged 39. They were each born in the United Kingdom and commenced cohabitation there in August 1999. They married [in] 2002.
3.The father had been married previously. From that relationship he has a daughter, [Y], born in 1995 and presently aged 15. He and [Y]’s mother ended their relationship prior to the father spending three years working in Bolivia from 1996 to 1999.
4.Following the father’s return from Bolivia in 1999 he met the mother. They were both employed by the company, [A]. The following year the father commenced working for [N], as a [occupation omitted]. Three years later he was promoted to [occupation omitted] for all of [N]’s international business. This position required a considerable amount of international travel. In 2004 the husband accepted a position in the company which was based in Sydney. The husband says that this position entailed running the [omitted] for the Asia and Pacific region.
5.The mother was able to secure a Sydney based position with her company as [omitted].She and the father moved to Australia in April 2005. They rented their property in [O], not far from London and lived in a property which they rented in Sydney’s northern suburbs. A year later, on 8 April 2006, their daughter [X], known as [X], was born. The mother took four weeks maternity leave. She initially recommenced work part time from home but increased her hours several months later and started spending time at the company’s office at [R]. The parents employed au-pairs and later a nanny to assist in [X]’s care.
6.The father’s work continued to involve him in travel, including for some time in May 2006 not long after [X]’s birth. The maternal grandmother travelled to Australia from England for a period of three months after [X]’s birth to assist with her care. It appears that the mother suffered emotional difficulties following [X]’s birth. She says that she participated in a six month post natal depression trial at [omitted] Hospital. She told the family consultant, Dr Z that she subsequently attended counselling.
7.In the months following [X]’s birth, the relationship between the parents deteriorated. The mother says that the father told her upon his return from work associated travel in November 2006 that he wanted “a separation for a period.” It seems that the parents later separated under the one roof for a time.
8.The father left the matrimonial home in April 2007 when he says the mother assaulted him. The mother told Dr Z, who prepared the family report in the matter, that she struck the father in anger and that she felt guilty and remorseful about this. Dr Z commented that this behaviour did not appear to be “generalised” and while the father set out details of the incident, there is no indication in his material that he now sees this as a continuing issue.
9.
[X] was about a year old at separation, after which she began spending time with the father during the day on weekends. He says that the mother refused his requests that he spend time overnight time with [X]. He instituted proceedings on 2 July 2008. Interim consent orders of
22 August 2008 provided for [X] to spend alternate weekends from 9.00am Saturday to 5.00pm on Sundays and Tuesday afternoons from 2.30pm until 6.00pm with her father.
10.
The final hearing listed for 9 and 10 June 2009 did not take place as the property proceedings were not ready. However, on 17 July 2009 further interim orders were made which extended the father’s time with [X] on alternate weekends initially from 6.00pm Friday to 5.00pm on Sunday and then after a period of some months, from 6.00pm Friday to 9.00am on Monday morning. The orders also provided for [X] to spend two block periods of time with her father for four days from
21 December 2009 and for six days from 10 January 2010.
11.The father presently lives on Sydney’s northern beaches at [C] with his partner, Ms S. He says he and Ms S commenced a relationship in December 2008, having known each other for the previous two years, before living together in March 2009. They plan to marry in June 2010. The mother resides at [omitted]. She has not re-partnered. Both parents are living in rented accommodation.
The proposals
12.The father in his minute of orders proposed that when [X] turns six years of age she spend equal time with each of her parents on a week about basis. Until then he proposed that her time with him be gradually increased so that when she turned four she spend time with him from 6.00pm Friday until Tuesday morning, and from the age of five from 6.00pm Friday until Wednesday morning. While the proposal did not specify that this arrangement was to be on a fortnightly basis, the Court would assume that he intended this to be an extension of the present alternate weekend arrangement.
13.As well as other holiday periods, the father also proposed that [X] spend two periods overseas with he and Ms S who was born in the United States and has most of her family living there. The first period was from 15 to 26 March 2010. It became impracticable for a determination to be made about this given that the matter was stood over part heard for a couple of weeks so that submissions could have the advantage of the judgment of the High Court in MRR & GR [2010] HCA 4. The father also proposed that [X] spend time overseas with he and Ms S from 16 June 2010 to 7 July 2110 to coincide with their wedding in Hawaii.
14.The mother proposed in her Minute of Orders that [X] be permitted to live with her in the United Kingdom. If the father also relocated there, she proposed that he spend time with [X] during school term on each alternate weekend from Friday afternoon to Monday morning, half of school holidays and special days.
15.In the event that the father did not live in the United Kingdom, she proposed that he spend time with [X] for one half of each school holiday period and, subject to providing one month’s notice, from Friday afternoon to Sunday evenings during school term. It was clarified at the commencement of the hearing that these proposed orders assumed that this time would be spent in the United Kingdom.
16.The mother proposed that in the event that she was not able to change [X]’s residence to the United Kingdom, [X] live with her and that the father spend time with the child from 6.00pm Friday to 9.00am Monday morning, each alternate Tuesday afternoon from 2.30pm to 6.30pm and for two block periods of five days each to occur in December 2010 and in January 2011 and for half school holidays after [X] commenced school.
17.There is an issue between the parties as to whether the father’s nominee as well as the father should be involved in the collection and return of [X].
18.The mother also sought orders that in the event she remained in Australia with [X], she be permitted to enrol the child in a preschool in 2010 at [suburbs omitted]. Although it was not specified in her minute of orders, it was clear that the mother proposed that [X] continue to attend one of these schools when she commenced her formal schooling. The mother also proposed that [X]’s surname be changed from Maine to Melton-Maine. The father opposed each of these proposed orders.
19.The mother sought an order that in the event she remained living in Australia with [X] she be able to travel overseas with the child for what was described as “additional periods totalling four weeks each calendar year” with a requirement that she give the father one month’s notification of her proposed travel together with appropriate details.
20.Both parents proposed that there be an order for equal shared parental responsibility.
21.In relation to parenting arrangements for [X], three proposals were made by the mother. Her preferred proposals were that both parties live with [X] in the United Kingdom, or that she live with [X] in the United Kingdom. The mother said that she would not move without the child. Her third proposal therefore, related to the parenting arrangements which she sought should both parents remain living in Australia.
22.The father did not seek any orders for the time he should spend with [X] in the event that [X] was able to live in the United Kingdom with her mother. His evidence was that he had no intention of himself moving to the United Kingdom. His proposal was therefore for parenting arrangements on the basis that both parents lived in Australia.
23.The Court will give further consideration to issues related to the possibility of the father residing in the United Kingdom later in the judgment.
The evidence
24.The father relied on his affidavit sworn on 8 February 2010 and filed on 9 February 2010 and on the affidavit of Ms S sworn on 29 January 2010 and filed on 9 February 2010.
25.The mother relied on her affidavit sworn and filed on 12 February 2010 and that of her mother Ms R sworn on 23 December 2009 and filed on 12 February 2010.
26.Also before the court in the parenting proceedings was the Family Report of Dr Z dated 11 April 2009.
The issues
·[X]’s relationship with each of her parents.
·The impact on [X]’s relationship with her father should the mother relocate with the child to the United Kingdom, in the event that the father did not also live there.
·The father’s availability to spend time with [X].
The relevant law
27.The Full Court in A & A (2000) 26 Fam LR 382 suggested three steps that should be followed by the Court in a relocation matter:
·Identify the relevant competing proposals
·Consider the proposal and evidence in the terms of the relevant factors set out in the Act which the Court must consider in determining the best interests.
·Explain why one particular proposal is to be preferred in terms of the best interests of a child.
28.In U & U (2002) 29 Fam LR 74 the High Court considered the approach to relocation matters and said the Court may not be able in every case to treat each of the steps as discrete and explained that the objective is always the child’s best interests.
29.The Full Court in Bolitho v Cohen [2005] FamCA 458 explained the approach as follows:
“We discern that the decision in U v U has ameliorated the somewhat rigid and/or formulaic suggested approach set out in A v A. In U v U the High Court said that the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to relevant s.68F(2) factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.”
30.Following the amendments to the Family Law Act in 2006 the Full Court in Taylor & Barker (2007) 37 Fam LR 461 said that a relocation proposal should continue to be considered and evaluated, so far as possible, in the context of making the necessary findings in relation to the relevant section 60CC matters and that such proposal also needed to be considered in the context of section 65DAA.
31.Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration in deciding whether to make a particular parenting order.
32.Section 60CC sets out the matters which the Court must take into account in determining what is in a child’s best interests.
Primary Considerations
Section 60CC(2)(a) requires the Court to consider the benefit to the child of having a meaningful relationship with both of the child's parents
33.[X] is still very young. The evidence indicates that her mother has been her primary carer. The father asserts in his affidavit that before he and the mother separated he was “totally involved in [X]’s care” when he was at home. However, because of the nature of his employment he was often travelling overseas. The mother says that he was also working long hours and often left home too early in the morning to be involved in [X]’s morning routines and would frequently arrive home after she had been put to bed. The mother returned to work and was assisted in [X]’s care by au pairs and then a nanny. She says however, that she was often able to work from home, that she lived close to her office and that accordingly she was available for [X]. She gives evidence in her affidavit of how she reorganised the child’s days at day-care and her working week to develop a consistent routine for the child. There is no reason not to accept this evidence.
34.[X] was just 12 months old when her parents separated. Initially, the father usually spent time with her on weekends during the day on either Saturday or Sunday. The mother says in her affidavit that there were a number of occasions particularly towards the end of 2007 and the beginning of 2008 when the father did not spend time with [X] as he was travelling overseas. The father appears to acknowledge that this was the case but says that the problem in part was what he described to Dr Z as the lack of regularity of his time with [X] which made it difficult to plan his travel around times when he would see her. The father’s time with [X] has increased following interim orders made by the Court.
35.Dr Z observed [X] with each of her parents. He stated in his report that her bonding and attachment to her mother was obvious. He observed that they enjoyed being together and interacted with each other in a relaxed way with ease in communication. He also observed positive and appropriate interactions between [X] and her father and described her bonding and attachment to him as “evident”. He described [X] as having a secure form of attachment to each of her parents.
36.Dr Z expressed the opinion that both parents had a very good connection with their daughter. His evidence was that each of them was important to her. At the same time he considered that [X] has a sense of “centeredness in life’ with her mother, by which he meant that the child’s world had been structured around life with her mother. He favoured a proposal which would continue to foster what he described as the focal point of the child’s life with her mother and also to nurture the relationship between [X] and her father. Dr Z was cross-examined at some length by the legal representatives of each of the parties. His evidence was not significantly challenged. The Court formed the view that he was an impressive witness and accepts his evidence about the particular significance to [X] of her relationship with her mother at this time.
37.There is no issue that [X] would benefit from a meaningful relationship with each of her parents. Certainly, if both her parents reside in reasonable proximity to each other such a relationship with each of her parents can readily be fostered. Dr Z’s evidence was that if the mother moved to the United Kingdom with [X] it would disrupt the relationship of the child with her father. Dr Z also suggested that “the reduced access could be supplemented by well-timed and significant visits by Mr Maine to the United Kingdom, and annual visits by [X] to Australia” [1] He said that if the father moved to the United Kingdom, [X] would not suffer any disruption in “any key relationships” and an appropriate schedule of the child spending time with the father could be arranged there. Dr Z’s evidence was that at [X]’s current age it was to her advantage for there to be as much contact as possible with each parent. He expressed the opinion that as she became older her wishes could have an effect on the arrangement but that also she would be able to tolerate without any loss of attachment, greater periods of time separated from any one parent. He thought that it was generally to a child’s advantage in the younger years to be able to spend more time with parents rather than having long gaps in the time spent with each parent.
[1] Paragraph 110 of Family Report by Dr Z dated 11 April 2009.
38.The Court finds, then, that to the extent that the mother’s proposal to relocate with [X] to the United Kingdom would not allow for the child to spend regular time with her father if he did not live in the United Kingdom, it is likely to have the effect of disrupting the child’s relationship with her father. It would mean that she would not have the benefit of a meaningful relationship with him. This consideration does not favour this proposal of the mother’s. Should [X] continue to live in Sydney as was reflected in the mother’s second proposal and in the father’s proposal, she would have the benefit of a meaningful relationship with each of her parents.
Section 60CC(2)(b) requires the Court to consider the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
39.There are no allegations of abuse, neglect or family violence in this matter.
Additional considerations
Section 60CC(3)(a) requires the Court to consider any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
40.Both parents have different accounts of what [X] says about spending time with her father. The mother says that [X] has said to her “I was upset and wanted you and Daddy said I would see you later” and that she has also said before periods of going to her father “I don’t want to go to Daddy’s. I want to stay home with you.” [2]
[2] Paragraph 76 of mother’s affidavit sworn and filed 12 February 2010.
41.The father says [X] has told him that she loves him and that she likes sleeping over at his house but that “Mummy said I am not allowed.”[3] He said in cross-examination that while [X] was with him she does not seem to want to return to her mother and asks him for what she wants.
[3] Paragraph 87 of father’s affidavit sworn 8 February 2010 and filed 9 February 2010.
42.[X] is not quite four and in the circumstances, especially given the conflict between the parents at present, the Court is not able to put particular weight on what her parents have reported. The Court, has the benefit of Dr Z’s evidence concerning [X]’s interactions with her parents and her relationship with them. Because of her age, this is not a matter where significant weight would be able to be given to her views as such.
Section 60CC(3)(b) requires the Court to consider the nature of the relationship of the child with each of the child’s parents and other persons including any grandparent or other relative of the child
43.[X]’s relationship with each of her parents has been discussed. [X] has a paternal grandmother and maternal grandmother who both reside in England. The maternal grandmother has visited Australia on five or six occasions since [X]’s birth. The mother and [X] travelled to England to spend time with her for a number of weeks at the end of 2008. The Court can infer from this that [X] would have a familiar relationship with her maternal grandmother and also with the mother’s step father who has accompanied the maternal grandmother on some of her visits.
44.The paternal grandfather became very ill and died towards the end of 2006. The father says that the paternal grandmother eventually intends to settle in Australia but in the meantime travels to Australia to stay on two occasions a year. The father refers to her visits in mid 2009 and again in January 2010 when he says she came on holiday with he, Ms S and [X]. He says that [X] has an excellent relationship with the paternal grandmother. There is no reason to doubt this.
45.Although the maternal grandmother says that she is likely to decrease her visits to Australia in the future, it is clearly the intention of the mother to visit her in the United Kingdom. The Court finds that [X] is likely to continue to have the benefit of a good relationship with each of her grandmothers whether she lives in England or in Australia.
46.Dr Z observed a positive interaction between [X] and Ms S. The father says that they have a good relationship and there is no reason not to accept that this is the case.
47.The father saw [Y] on some occasions following his return from Bolivia. His evidence was [Y]’s mother was reluctant to allow him to spend time with her that was not supervised and that he did not wish to institute Court proceedings about his time with the child. In his discussions with Dr Z and in cross-examination, the father expressed some doubt as to whether this child was his daughter. Nevertheless he agreed that he had paid child support for her until he came to Australia and had never challenged paternity in that context. The mother says that she has been in contact with [Y] and her mother and that if [X] came to live with her in England she would have the opportunity to develop a relationship with her half sister. There is no significant relationship at present. What may occur in the future must be regarded as hypothetical.
48.Neither of the parents have any siblings. The mother has a cousin in South Australia who assisted her on one occasion with [X]’s care when she was suddenly hospitalised. She told Dr Z that she had some cousins living a few miles from her mother’s home and other relatives in other parts of the United Kingdom. An advantage of the mother’s proposal to relocate to the United Kingdom would be the opportunity for [X] to spend more time with her mother’s extended family members. Her most significant relationships, of course, are with her parents.
Section 60CC(3)(c) requires the Court to consider the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
49.It was submitted by the father’s counsel that the orders sought by the mother in the event that she lives with [X] in the United Kingdom did not indicate an intention to seek to facilitate a close and continuing relationship between [X] and her father. The details of the mother’s proposals for [X] to spend time with her father should she live with her mother in the United Kingdom will be considered. The Court formed the view, however, for reasons to be discussed, that the mother had not given very serious consideration to how much time it was likely that the father would be able to spend with [X] in the United Kingdom. From the mother’s responses in cross-examination the Court also formed the impression that she did not appear greatly concerned about the prospect that the father may not be able to visit the United Kingdom regularly and so maintain his relationship with [X].
50.Maintaining [X]’s relationship with her father should her mother live in the United Kingdom and the father live in Australia, would be more demanding, than if the parties resided within reasonable proximity to each other in either the United Kingdom or Australia. This would be so because of the more complex logistics involved, especially while [X] is very young. There is no doubt that the mother continues to view negatively the behaviour of the father in travelling so often following [X]’s birth at a time when she was feeling particularly vulnerable, and in then entering into a new relationship. The Court finds that there must be some doubt about the mother’s ability and willingness to facilitate and encourage a close relationship and continuing relationship between [X] and the father should she and the child live in the United Kingdom. This does not favour this particular proposal of the mother’s.
Section 60CC(3)(d) requires the Court to consider the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child) with whom he or she has been living)
51.As discussed, Dr Z’s opinion was that [X] had a sense of centeredness in her life with her mother. In cross-examination he described this as “the focal point.” He considered that the mother had established a more predictable world for the child and had structured a world around the child even though she was working and assisted by a nanny. He thought that reducing the time [X] spent with her mother and introducing an arrangement for her to spend alternating weeks with her father may “not be as nurturing or comforting” for her as would be an arrangement where she spent more time with her mother.
52.The Court accepts this evidence of Dr Z. It is consistent with the mother having been [X]’s primary carer. The Court finds that this is an important consideration in evaluating the father’s proposal to move to equal time with [X] when she turns six years of age.
Section 60CC(3)(e) requires the Court to consider the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
53.The mother proposes that if she is living in the United Kingdom with [X] and the father remains in Australia that he spend time in the United Kingdom with [X] for half of each of the school holidays and if he gives one month’s notice, from Friday afternoon to Sunday evenings during term time.
54.The mother’s evidence is that typical public school holidays in England involve one long holiday of about nine weeks in the English summer, and two shorter holidays of three weeks and four to five weeks respectively. The mother in cross-examination said that possibly at some time in the future [X] could spend half of the long school holidays in Australia. She was not able to be specific about when she though this could occur. To date [X] has spent no more than a continuous period of six days with her father. At her age, of course, she would be required to travel with an accompanying adult.
55.The mother did not make any suggestions as to how it would be decided when it was appropriate for [X]’s time with her father to be spent in Australia or how it would be determined whether she or the father would fly with [X] to the other country and then make the return trip. She said it would be decided by “responsible people for [X].” She said that if it was decided that [X] could travel to Australia and she was the parent who accompanied her, she would probably remain in Australia for a period, stay in a hotel and work remotely. When asked if she would do this twice a year she replied “yes.” She thought that if the husband was the parent accompanying [X] that he could fly from Australia and possibly stay with relatives in the United Kingdom. The mother said that she had not considered which parent would pay for this travel.
56.The mother agreed that initially if the father was to take advantage of her proposal that he would need to spend half of the total holiday period of about 17 weeks in the United Kingdom. The mother was asked whether her proposal envisaged that [X] would be staying with the father wherever he stayed during such a period. She responded that she was not sure about that and said that she did not intend that the father spend half the holidays as a block period of time with [X]. She agreed that the orders which she proposed did not reflect what she had in mind. It was put to the mother that her evidence in cross-examination suggested that the father would fly to the United Kingdom spend six days with [X], wait a while and then spend some more time with her. The mother acknowledged that she did not know how she proposed that this would work in reality.
57.The mother acknowledged that given the father was to remarry, there was a possibility if not a probability that he would start a new family. When asked if this could present difficulties, she suggested that he could bring his family to the United Kingdom. She acknowledged that there was a potential for difficulties in the father’s situation with a new family if he was to spend the time she proposed in the United Kingdom. She said she did not know if it could cause a problem with the father’s employers although she accepted that he was entitled to a total of four weeks holiday a year. The mother agreed that if the father was to exercise the time with [X] proposed by her, he would be required to travel to the United Kingdom at least three times a year. When asked if the prospect of him being able to go to the United Kingdom to spend the additional proposed non holiday times with [X] would be remote, the mother responded “no”. She said that this was because the father had previously frequently flown to the United States for work purposes and had visited the United Kingdom.
58.The father was cross-examined about his failure to propose orders for his time with [X] should she reside with her mother in the United Kingdom. He said that what he would want in those circumstances would be for [X] to spend all of her holidays with him in Australia. He stated, however, that that would be impractical and that he could not think of a practical solution which would not involve the child being on a plane for long flights to spend short periods of time with him. The difficulties were increased by the fact that she could not fly unaccompanied.
59.The father was asked about his capacity to travel. He said that he thought that he would be able to travel to the United Kingdom to see [X] once a year. He said that if he did nothing else during his holidays, the maximum could be twice a year for ten days minus travel time on each occasion. He thought that would be unrealistic given that he anticipated other family commitments. He said that the United Kingdom was not an area that he covered for work. This appears to be borne out by the details of his recent travel contained in his passport which was tendered in the proceedings. It is evident that he had travelled overseas for work purposes on a number of occasions in 2006 following [X]’s birth. The father’s overseas travel for work purposes has continued. In 2009 he travelled to the United States in October, to India in March and November and again to India in February 2010. The father agreed that he made short trips within Australia most frequently to Melbourne but that he was usually able to travel in and out in a day. In addition to the international trips for work purposes the father has travelled to the United States for leisure in December 2009 and planned a further visit to the United States in March 2010 to meet members of Ms S’s family in Chicago and attend a family wedding in New York. He also planned to travel overseas from 16 June to 7 July 2010 for his wedding to Ms S in Hawaii.
60.The father said that his mother wished to leave the United Kingdom and come to live in Australia as he is her closest relative. The paternal grandmother did not file an affidavit in the proceedings. The Court cannot make any findings about the likelihood of the paternal grandmother actually living in Australia. Certainly, the evidence is that she has made two visits to Australia in the last twelve months. The father said that his non work related travel was limited by his twenty days annual leave although he acknowledged that he was taking more than twenty days in 2010. He said that he needed to take into account future family commitments with his future wife and future children.
61.It is important in relocation matters to take into account the realities of the travel involved and the circumstances of the parties. The Court accepts that realistically, taking into account the circumstances of the distance and travel time it is unlikely that the father would be able to visit the United Kingdom more often than indicated in his evidence.
62.Further, of course, the mother’s proposals elaborated upon in cross-examination, would mean that many details would need to be discussed and agreed between the parents. The evidence in this matter is that there is conflict and poor communication between them. It was submitted by the mother’s counsel that the parents currently had poor communication. She referred to the evidence of Dr Z who in his report referred to the present ongoing conflict between the parents. In cross-examination he was unable to say that the difficulties between the parents would probably abate once the litigation has concluded and final orders were in place. Rather he said that it would depend on what kind of damage had been inflicted in the process. This is not encouraging of the parents being easily able to reach agreement about the many outstanding issues relating to the organisation of travel for [X] to spend time with her father should the mother live with [X] in the United Kingdom.
63.This is a matter where the Court would find that the practical difficulty and expense of [X] spending time on a regular basis with her father if she was to live in the United Kingdom with her mother would substantially affect her right to maintain personal relations and direct contact with him on a regular basis. This is not a factor which favours the mother’s proposal to relocate with [X] to the United Kingdom.
Section 60CC(3)(f) requires the Court to consider the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child including emotional and intellectual needs.
64.The mother is presently working full-time. She sets out her current arrangements for [X]’s care in her affidavit. On Mondays she says she takes [X] to her swimming lesson at 10.00am. [X] is cared for by the nanny until 4.30 pm when her mother returns from the [R] office. On Tuesday the mother leaves at 9.00am and [X] is cared for by the nanny until she is collected by her father at 2.30pm. The mother collects [X] from her father’s home at 6.30pm. On Wednesdays, Thursdays and Fridays, [X] attends childcare at [omitted] near the mother’s home. The mother takes her there and collects her at 5.00pm.
65.An issue in this matter is the availability of the father to care for [X]. Dr Z commented at the time of writing his report that the father had recently increased his involvement in parenting.[4]
[4] Paragraph 107 of Family Report by Dr Z dated 11 April 2009.
66.The father told Dr Z that he changed his work role in October 2008 to decrease requirements on him to travel so that he would be available on alternate weekends to be with [X]. He said it was the irregularity of his time with [X] in the past that had made it difficult for him to plan work travel and hence led to his unavailability to be with the child.
67.Dr Z commented that it appeared to him that the father was “selective” in his self-presentation in order to manage a positive impression. In his view it remained unclear whether the father’s assurance that he was ready to re-allocate work responsibilities so that he could be readily available to parent [X] was a fundamental change on his part, or “a temporary demonstration.” He thought that there was also some question as to whether the father would shift a balance of parenting responsibilities towards Ms S.
68.In his affidavit the father said that if there was an order for shared care of [X], he proposed that the current arrangements continue. He said that he or Ms S would drive [X] to and from day care and that he would make arrangements for the nanny to look after [X] if necessary. He wanted orders that would allow Ms S to collect [X]. The father said that she is available to assist him in [X]’s care. He also said that his mother is in the process of applying for a residency visa in Australia so that she can be closer to [X] and assist him.
69.The father’s travel and availability to care for [X] became an issue not long before the hearing when he sent an email to the mother advising that Ms S would be collecting [X] on Tuesday February 2 at 2.30pm. The mother responded asking why the father would not be collecting the child. After an exchange of several emails the father advised that he was away for work that afternoon and had planned for Ms S to look after [X] in his absence. After a further email from the mother, he advised that he would be out of the country.
70.It appears that the father has a senior position in his company. Despite what he said to Dr Z he has continued his overseas travel for work purposes. This, of course, does not mean that he does not have the capacity to provide for [X]’s needs, including her emotional and intellectual needs. It does, however, mean that he may well be unrealistic in proposing a shared care arrangement. His proposal and indeed his actions, indicate that he anticipates relying on Ms S to assist him. There is no indication that Ms S is anything other than a pleasant person who genuinely enjoys [X]’s company. At the same time, the two significant relationships for [X] are her mother and her father. The father appears in some ways to be reluctant to acknowledge that the mother, although she works, has been able to structure a world around [X], and that as Dr Z also suggests, [X] derives comfort and nurture from her mother’s role in her life.
71.Both parents have a capacity to provide for [X]’s needs including her emotional and intellectual needs. However, the Court finds on the evidence set out above that the father is less available to care for [X] than the mother.
Section 60CC(3)(i) requires the Court to consider the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
72.There is a history of significant conflict between the parents. Dr Z identified as part of this the mother’s perception that she and the father had moved to Australia for the father’s benefit and that the father was less available than was expected of him as a husband and father. This of course was in the context of the mother suffering emotional difficulties as discussed following [X]’s birth. The mother’s evidence is that she found this time very stressful. The father subsequently entered into a new relationship and Dr Z identified this too as one of the factors relating to the history of conflict and the mother’s perceptions of the father’s behaviour.
73.The father in cross-examination found it difficult to acknowledge that travel overseas so shortly following [X]’s birth might not seem to be reasonable. He did not recollect that he had gone to the US in May 2006. In cross-examination he was not able to demonstrate a reasonable understanding of the mother’s situation in April 2008 when she was hospitalised for an emergency gall bladder removal. The mother’s evidence is that earlier in the year the father had said to her that he would be away over the Anzac Day period. She annexed to her affidavit an email from the father in which he said that he would be travelling on the Anzac weekend. The mother attended hospital because of extreme pain on 24 April. She was admitted into hospital on that day and underwent surgery on Anzac Day, 25 April. She said that she had to make arrangements for [X] in a great hurry while being in pain. She understood that the husband was away. She contacted a cousin who resides in South Australia to come and stay with [X] for two nights and contacted her mother who arrived in Australia the next day.
74.The father complained that the mother took these steps rather than contact him to care for [X]. When cross-examined about this he responded that he had not sent the mother an e-mail saying that he would be travelling but rather that he would be away. As it transpired he was an hour away. His complaint was that he should have had the opportunity to look after [X] for the 2 days. It was put to him that in the circumstances of the mother having emergency surgery and having received advice from him that he would be away her actions were reasonable. He said that it was only after the mother made the arrangements that she called him. The court finds it difficult to understand why the father was not able to concede that the mother acted reasonably in circumstances which clearly would have been extremely stressful for her. It seems fairly clear from the evidence that thinking he would be away, she phoned to let him know what had occurred and what plans she had made.
75.Dr Z was asked whether he would agree that the parents were capable of putting aside their own differences when it comes to dealing with the best interests of [X]. He responded that he did not know. Certainly, the parents although they have participated in counselling, continue to display high levels of antagonism towards each other. Their communication is not good. Each of the parents has enrolled [X] in a different activity on the Saturday morning she is with that particular parent without any apparent communication about this. It therefore seems impossible for her to participate in either one of these activities on a continuous weekly basis. Dr Z has identified the mother’s sense of grievance. The evidence suggests that the father often responds with a sense of entitlement. These factors impact on the attitude of each parent to the responsibilities of parenthood. It seems doubtful that at this time either of the parents is able to prioritise [X]’s needs in the context of the current level of conflict. The Court has already discussed how the dynamic is likely to make arrangements for the father to spend time with [X] should she reside in the United Kingdom with her mother that much more difficult to achieve.
Section 60CC(3)(j) requires the Court to consider any family violence involving the child or a member of the child's family and Section 60CC(3)(k) requires the Court to consider any family violence order that applies to the child or a member of the child's family, if the order is a final order; or the making of the order was contested by a person;
76.This is not a relevant issue in this matter.
Section 60CC(3)(l) requires the Court to 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 child;
77.This consideration is problematic in this matter given [X]’s very young age and the possibility that as she gets older she is likely to have views about her schooling and how much time she wishes to spend with each of her parents. As Dr Z says, these views should be taken into account in arrangements being made about her as she becomes older. The circumstances of each of the parents may well change significantly in the future. It seems that the father anticipates having a family. Inevitably, further decisions will need to be made in the future for example, in relation to schooling. This is not a matter where the Court is able to speculate about what changes may occur and their impact on [X] in future years. The present level of conflict between the parents means that it is in the child’s best interests that final orders are made at this time.
Section 60CC(3)(m) requires the Court to consider any other fact or circumstance that the court thinks is relevant.
78.There are no other relevant factors in the matter that need to be considered.
Section 60CC(4) requires consideration of the extent to which the child’s parents have taken the opportunity to participate in decisions about the major long term issues in relation to the child and the extent to which the parent has facilitated or failed to facilitate the other parent’s participation in making such decisions or in being able to spend time with the child or communicating with the child.
79.[X] is very young. The father wishes to be involved in decision making about major long term issues affecting her, particularly at this time in relation to arrangements for her schooling. This will be discussed later.
Parental responsibility
80.Section 61DA(1) states that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child
81.Section 61DA(2) states that the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence. The presumption may be rebutted if there is evidence which satisfies the Court that it would not be in the best interests of the children for the parents to have equal shared parental responsibility for them.
82.This is not a matter where there are reasonable grounds to believe that neither parent has engaged in abuse of the child or in family violence. This is a matter where each of the parents supports an order for equal shared parental responsibility. It is unfortunately also a matter where the parents have difficulty in communication and co-operating in making arrangements for [X]. They have not communicated about her activities. They disagree quite strongly about her schooling. They have participated in counselling but are still unable to resolve their differences in so far as they relate to [X]. A factor in this may well be the unresolved issue of the mother wishing to live in the United Kingdom with [X].
83.The Full Court in Chappell & Chappell (2008) 39 Fam LR 627 considered the presumption and commented that it would be an appropriate exercise of the Court’s discretion in some cases to find that the application of the presumption would not be in the children’s best interests because the track record of the parents would suggest a higher probability of deadlock, which could inevitably lead to further proceedings. The recent history of this matter provides the basis for concern about this. The fact that both parents seek an order for equal shared parental responsibility is significant but not determinative. However, the Court has found that that both parents have a capacity to provide for [X]’s needs. The Court does not find that this is one of the exception matters referred to in Chappell & Chappell where an order for sole parental responsibility should be made. This is a matter where the presumption should be applied.
84.Given that there will be an order for equal shared parental responsibility, as explained in Goode & Goode [2006] FamCA 1346 the Court is required to consider the provisions of section 65DAA(1):
If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Significant and substantial
85.Section 65DAA(2) provides that if an order is made for equal shared parental responsibility and the Court does not make an order for the children to spend equal time with each of the parties, the Court must consider whether the children spending significant and substantial time with each of their parents would be in their best interests and if that would be reasonably practicable.
86.Section 65DAA(3) provides that a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
87.Section 65DAA(5) sets out the following:
In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
88.
The father’s proposal at hearing was that [X]’s time with him be increased so that she commenced spending equal time with each of her parents in two years time when she turned six. The Court has found that the father is likely to be less available to care for [X] than her mother. The Court has accepted the evidence of Dr Z that the mother has structured a world around [X] and that the child has a sense of centeredness in her life with her mother. Dr Z’s evidence was that a schedule of alternating weeks may not be as nurturing or comforting for her as spending a greater part of her time with her mother. In his opinion, an equal time arrangement could be a consideration when [X] was older, around twelve years of age, and “able to appropriately participate in decision making.” [5] [X] was nearly four years of age at the time of the hearing. The Court gives weight to the evidence of
Dr Z about the possible adverse affects on [X] of a parenting arrangement which significantly reduces the time she spends with her mother.
[5] Paragraph 109 of Family Report by Dr Z dated 11 April 2009.
89.The Court accepts this evidence and also the evidence of Dr Z given in cross-examination, that he did not think when he saw the parents that given the nature of their relationship they were in the position of being able to make a substantially shared parenting arrangement work. He said that this was one of the reasons why he made the suggestion when he prepared his report that the child live with her mother and spend substantial and significant time with her father. The evidence does not indicate that there has been any improvement to the capacity of the parents to compromise and co-operate since that time.
90.The Court cannot predict at this time the extent to which any of the factors identified would have changed in two years time. For the reasons set out above the Court does not find that an equal time arrangement would be in [X]’s best interests. The High Court in MRR& GR [2010] HCA 4 has emphasised that section 65DAA requires the court when making an order that a child spend equal time or significant and substantial time with each of the parents to consider the question of whether the proposed order is in the best interests of the child and also the question of whether such an order is reasonably practicable. It is only if both questions are answered in the affirmative that consideration can be given to making the order. The Court has not answered affirmatively the question of whether it would be in the child’s best interests to spend equal time with each of her parents. The Court finds it would not be reasonably practicable, particularly in terms of distance, if the parents lived in separate countries. It would also not be reasonably practicable for the reasons set out above because of considerations related to ss.65DAA (5)(b) and (c). Because the Court has not answered either of these questions in the affirmative the Court is not able to give consideration to making an order for equal time.
91.The Court has found that [X] has a good relationship with each of her parents and would benefit from a meaningful relationship with each of them. It was the recommendation of Dr Z that [X] live with her mother and spend substantial and significant time with her father. The Court on the evidence before it in this matter considers that it would be in [X]’s best interests to spend substantial and significant time with each of her parents.
92.The Court is also required to consider whether this is reasonably practicable. It would be reasonably practicable, in terms of geographical considerations if both parents resided in the United Kingdom or if they both resided in Sydney.
93.Like the mother, the father has permanent residency in Australia but retains British citizenship. He told Dr Z that he did not want to live in the United Kingdom. His evidence at hearing was that he does not like life in the United Kingdom and that a move there would cause him financial hardship because he would not have a job there. He said that he would be miserable living in the United Kingdom. Like the mother, he is an only child and says that he has no ties in the United Kingdom. He says he anticipates that his mother will move to Australia although, as discussed, she has not given evidence about this.
94.While Dr Z thought that the father was somewhat ambiguous when he saw him about whether he would move to the United Kingdom if the mother was permitted to take [X] to live there, at hearing the father was very definite that he would not do so. His fiancée, Ms S, said in her affidavit that she has had permanent residency status in Australia since 2004 and intended to remain living in the area where they presently reside. She told Dr Z that if the father went to the United Kingdom she would go with him, although there was not clear evidence before the Court as to what resident status she might be entitled to other than the fact that marriage to a British citizen would not automatically entitle her to British citizenship.
95.The Court is required to undertake an analysis of the reasonable practicability of each of the proposals and accordingly needs to give consideration to the father’s evidence about his willingness to live in the United Kingdom.[6]
[6] Collu & Rinaldo [2010] FamCAFC 53.
96.The father is a British citizen and so he could obviously live in the United Kingdom although there is some uncertainty about the status of Ms S. The father’s particular concern was about having to give up his present employment and the uncertainty of finding appropriate employment in the United Kingdom. As noted, he said that returning to the United Kingdom would cause him financial hardship and that he would be “miserable” there. He expressed a concern about where the mother might live in the United Kingdom and that it could be some distance from the area of London where it might be possible for him to get a job, and by implication may affect his ability to live close enough to [X] to be able to spend significant and substantial time with her. The father was not cross-examined at any length about these matters, possibly because of his adamant assertion that he would not consider relocating to the United Kingdom, should the mother be permitted to move there with [X].
97.The mother is not certain about where she would live if she returned to the United Kingdom, although she says that it would be in the vicinity of [T] where her mother and stepfather live. She says that there are many centres between [T] and London where the father, should he choose to live in England, could find accommodation within reasonable commuting distance of London. The mother says that [T] is about an hour by train from London. The maternal grandmother in her affidavit said that it was approximately one hour and fifteen minutes away. The mother’s evidence is that her present employer will offer her employment in the United Kingdom. The Court on the evidence before it is left with uncertainty about the father’s employment prospects in the United Kingdom. Certainly, Dr Z accepted that the father had strong feelings about not wanting to live in the United Kingdom. On balance, it does not appear to be reasonably practicable to consider an arrangement for [X] spending substantial and significant time with each of her parents on the basis of the father living in the United Kingdom.
98.The mother’s preferred proposals are that she live in the United Kingdom with [X] and that the father lives there, or that she and [X] live in the United Kingdom and the father lives in Australia. Certainly, it would not be reasonably practicable for there to be an order for significant and substantial time if [X] lived with her mother in the United Kingdom and her father lived in Australia. The mother’s evidence is that she came to Australia because she wished to avoid the father’s absences while he was travelling in the course of his employment and that she wanted to support his career. She said that it was not her intention to remain away from the United Kingdom permanently and that although she and the father separated in April 2007, she held out hopes of reconciliation. It was only in June 2008, she says, when the father said that he saw the separation as final that she realised that there was no possibly of reconciliation. She then no longer wished to remain in Australia.
99.The mother says in her affidavit that she has no other family in Australia other than her cousin in Adelaide and no reason to remain living in Australia other than to allow [X] to spend time with her father [7]. The mother told Dr Z that there is no one in Australia for her, no family and no support.[8] Dr Z said the mother was seeking to have the support of family, in particular, her mother. The mother proposes that if she and [X] relocated to the United Kingdom she would initially live with her mother and step father in the town of [T]. She says that she would propose to enrol [X] at [B] school where her stepfather is head teacher of mathematics.
[7] Paragraph 98 of mother’s affidavit sworn and filed 12 February 2010
[8] Paragraph 72 of Family Report by Dr Z dated 11 April 2009.
100.While the mother seeks family support, it does not appear that she is isolated living in Sydney. She says that [X] enjoys attending her netball games on Saturday afternoons and that other team members have children of the same age. She says that she has networked and formed friendships with the parents of other children at [X]’s day care and has organised with these parents to have play-overs at her house or the house of a friend. In cross-examination the mother said that she has had friends come to stay at her home. She says that she has had friends to stay for six months and not expected that they would contribute to the rent. She was asked whether anybody else was living in her home at present and said “not permanently.” She says she has a work colleague who uses downstairs in her home as an office. She said this friend travels interstate and stays every few weeks.
101.The mother in her affidavit referred to a counsellor she had consulted until early 2008 who provided assistance to her in handling changes in the family structure for [X] and herself. She referred also to a psychiatrist she had seen until mid 2009 for counselling for herself. However, the mother provided no evidence in the proceedings from such professionals relating to issues concerning her emotional wellbeing.
102.Dr Z was asked about the psychological vulnerability of the mother. He said that he recalled that the mother experienced distress around the time of pregnancy and following [X]’s birth and had received some support in relation to that. He was asked whether he had any sense of whether or not the mother’s distress should she not be permitted to relocate would impact on her parenting. He responded that he was not entirely clear. He referred to the various stressors which parents in general might have in their lives and commented that in his view it is within the parent as an individual to pull together their life experience and to fulfil their role and responsibility as a parent. He did not conclude that living in one location or another would have a specific impact on parenting ability. While Dr Z phrased his comments in general terms, he had been asked to consider the impact of the mother’s distress if she was not able to relocate. It is therefore reasonable to interpret his comments as being applicable to the mother. In the same context, Dr Z was also asked whether the father had raised with him anything that was of concern. Dr Z responded that the father expressed a strong feeling that he did not want to be in the United Kingdom. He said that the father referred to potentially losing his present employment and struggling to find other employment. He said that he would characterise the concerns expressed by the father as similar to the mother’s expression of her concerns.
103.The mother continues to be employed in a well paying position in Australia although her evidence is that employees of the company have had to accept pay cuts. She says that she has been advised that she can continue to work for the same company if she returns to England.
104.[X] is almost four years of age. Although she is young, it appears that she is well settled in her present environment. The mother says in her affidavit that [X] settled well into her day care centre. Each of the parents has involved her in various activities. The mother indicates that [X] has a network of friends.
105.Considering the factors set out above, while the mother would not be happy about the prospect of staying in Australia, it is reasonably practicable that an order for substantial and significant time could be made on the basis that both parents live in Australia.
106.The proposal for [X] to reside with her mother in the United Kingdom is not in the child’s best interests because the Court has found she will benefit from a meaningful relationship with each of her parents and it is unlikely that she would be able to spend time with her father on a regular basis. Her relationship with him would be likely to be disrupted. As has been discussed, [X]’s age is also a consideration. In submissions the mother’s counsel referred to the possibility that the Court might consider making an order allowing the mother to relocate with [X] but delaying her departure until [X] started school. Presumably this would be at the commencement of 2011. The manner in which this possibility was introduced at the hearing does not suggest that it is a proposal of the mother’s as such, but rather something which the Court could consider as a further alternative. Such a possibility was not put to Dr Z. It would be important for the Court to have the advantage of independent evidence about the possible benefits and/or detriments to the child of such an alternative. In the event, such evidence was not before the Court. A further reason why the Court is reluctant to consider such an alternative is that it potentially invites further litigation in the short term. It is also difficult to see in the circumstances what difference a period of six months or so would make to the issues considered in this matter.
107.The Court proposes to make an order that [X] spend substantial and significant time with each of her parents and an order restraining the mother moving the child’s residence to the United Kingdom.
108.The mother proposed that if she remained in Australia, [X] should live with her and spend time with her father during school term each alternate weekend from 6.00pm Friday to 9.00am Monday and each alternate Tuesday afternoon from 2.30pm to 6.30pm. She proposed that the husband personally be required to collect and return [X] when he spent weekend time with her.
109.She proposed that that [X] spend two block periods of five days with her father, the first commencing on the 20 December 2010 and the second commencing on the 10 January 2011 and that after [X] commenced primary school she spend half school holidays with her father. The mother also sought to be able to remove [X] from Australia for additional periods totalling four weeks each year.
110.The father proposed that after [X] turns four she spend time with him from 6.00pm Friday until Tuesday morning and from when she turns five from 6.00pm Friday until Wednesday morning. He then proposed, as discussed, that she spends alternating weeks with each parent from the age of six.
111.The evidence is that at present [X]’s life is very centred around her mother. Dr Z supported an incremental approach to [X] spending more time with her father. The mother’s proposals at least up to the time [X] starts school when she would commence spending school holiday time with her father would mean that [X] would spend less time with him than she does now. It seems the Tuesday afternoons at times have been a problem from the mother’s perspective in that on occasions and most recently in February, the father has been travelling and therefore unlikely to be available to spend the time with [X], or at least to be able to collect her.
112.Nevertheless, it is in [X]’s best interests to spend substantial and significant time with her father. Dr Z’s evidence is that she should also spend regular time with him at her present age. An advantage of time on Tuesdays is that [X] is able to be collected from the nanny and on present arrangements, returned to kindergarten on Wednesday should she spend overnight on Tuesday with her father. The Court does not propose to require that either the father or the mother personally be responsible for collection or return of the child, although any agent of either of them should be known to the child. The Court proposes to make an order that [X], while she continues to attend pre-school, should spend time with her father from 2.30pm on Tuesday until before pre-school the following day, in the week following the week in which she would be spending an alternate weekend with her father. This should be subject to a proviso that the father will not be away from the home on the Tuesday afternoon or evening.
113.The Court proposes to make an order that when [X] commences school she spend time with her father each alternate weekend from 6.00pm Friday until before school on Tuesday morning and from the age of six each alternate weekend from 6.00pm Friday until before school on Wednesday morning. Apart from the block time referred to below, the Court proposes to make orders for [X] to spend two periods of one week with her father between now and when she commences school at times to be agreed between the parents, and failing agreement, for one week commencing on 18 December 2010 and for a second week commencing 10 January 2011.
Travel overseas with the father
114.Dr Z thought that an incremental approach should be taken towards introducing extended periods of time for [X] with her father and that if the mother reported, as she did, that there seems some disruption to [X]’s behaviour after she has spent longer periods of time with her father, the parents should attempt a shorter period sooner rather than waiting for the next longer period. The difficulty, of course, is that it is difficult for Court orders to accommodate these adjustments. Dr Z was asked how he thought [X] would be able to deal with a separation from her mother of, for example, a week. He responded that where there was a good relationship between the child and each of her parents and where the separation was not abrupt and surprising to the child, he thought that she could cope well enough with that sort of separation from her mother.
115.Partly for practical reasons the father did not pursue his earlier proposal to take [X] overseas with him in March. He proposes taking [X] overseas from 16 June 2010 until 7 July 2010. He wishes [X] to be able to attend his wedding to Ms S in Hawaii and says that if [X] is able to travel with him, he would travel via Los Angeles so that she could go to Disneyland. The father’s counsel stated in submissions that the father was prepared to shorten this period. [X], of course has also been spending time with her father on two consecutive nights each fortnight since July 2009 and on three consecutive nights since October 2009. She spent two block periods of time with him in December 2009 and in January 2010. The second of these was for a period of six days.
116.Given Dr Z’s evidence, a lengthy separation of [X] from her mother may well be difficult for her at this time. The Court is of the view given this evidence and the history of the time [X] has spent with the father to date, that a period in excess of ten days may well be difficult for the child. The Court proposes to make an order that the husband is able to remove the child from Australia and spend a maximum of ten days with the child during the period of the father’s travel for his marriage to Ms S.
Mother’s proposed annual overseas travel
117.It is evident that the mother would like to be able to take [X] overseas, presumably to the United Kingdom. She proposes that she have additional periods of time with the child for this purpose. The Court assumes that she means additional time to that otherwise provided for in the orders. It is not clear whether the mother is proposing to take [X] out of school for a period of some weeks since she agrees that when [X] starts school, holiday periods should be shared equally with the father. The mother is very close to her own mother and wants to ensure that she is able to travel back to the United Kingdom. It is also in [X]’s interests to spend time with the maternal grandmother.
118.The Court proposes to order that the mother may remove [X] from the Commonwealth of Australia for a total period of up to four weeks each year, which could include a period of school term which is approved by the school which [X] attends. The mother is to provide travel and contact details to the father at least one month prior to the trip. Any time the father would otherwise spend with [X] apart from time during school holidays is to be suspended if necessary. It may be that the parents would agree on adjusting school holiday time with [X] to accommodate such overseas travel.
149.The husband again argued for the average price approach which according to Mr G in this instance would not attract capital gains tax. His counsel submitted that if the Court accepted the current price valuation as contended by the wife, the sum of $3,391.00 in respect of capital gains tax as set out by Mr G should be taken into account. For the reasons set out above in relation to shares acquired under the employee stock purchase plan, the Court proposes to take into account the current value of these shares and accordingly the sum of $226,670.00 will be included in the table of assets and liabilities. Also for the reasons set out above, the Court does not propose to make an allowance for capital gains tax payable on sale.
Employee share options - item 3c
150.
During the husband’s employment he was granted a number of employee share options in the period 4 October 2002 to 22 September 2004. Mr G set out his method of valuing these options in his first report. It appears that no issue has been taken with this. Mr G understood that there were no restrictions on exercising the options other than the restrictions discussed previously. In the table at paragraph 5.6 of his February 2010 report he valued the options based on current share prices at $360,636.00 with income tax liability of $167,696.00 and net proceeds of $192,940.00. On the average price approach they were valued at $295,520.00 with income tax liability of $137,417.00 and net proceeds of $158,103.00. Tax would be incurred when the options are exercised. For the reasons set out above, the Court accepts that these employee share options should also be valued at current prices and accordingly a figure of $360,636.00 will be included in the table of assets and liabilities. It was the evidence of
Mr G that no capital gains tax would be payable on the shares obtained from the exercise of the options if the shares were sold at the same time the options were exercised.
Paid legal fees - items 14 and 15
151.The parties shared the proceeds of sale of a property they owned in the United Kingdom. The wife retains her half share in the sum of $271,000.00 in her account. The husband retains the sum of $256,000.00 in his account which is therefore slightly diminished compared to the balance in the wife’s account. The parties also shared equally the balance they had in their Australian bank accounts around the time of separation. At that time the wife received $65,000.00 and the husband received $67,000.00. The wife had $59,000.00 standing to her credit in her account which she said at one time peaked at $101,000.00. The husband’s current balance is $1,314.00.
152.The wife points to the husband’s current balance of $1,314.00. She says that the husband has substantially reduced the amount that was paid into the account and that he has also had the benefit of a sale of a boat, the return of a rental bond and the return of a visa card bond. The husband’s evidence was that the boat was sold for $11,000.00 but that after moorage fees were repaid the amount he received was $6,000.00. He agreed that this sum was deposited into his account. His evidence was that he split the sums returned from the rental and visa bonds with the wife. The evidence before the Court does not allow the Court to make a finding about whether this occurred. The husband said that the funds in the account had largely been used to pay for the purchase of a motor vehicle for around $60,000.00. The vehicle is included in the asset pool. The wife’s counsel accepted that exhibit 11, the husband’s relevant Westpac bank statements, indicated a withdrawal of the sum of $50,000.00.
153.It was put to the husband in cross-examination that he had paid his legal fees from money held in his Westpac bank account. The husband said the majority of payments had come from his salary, however, when pressed he agreed that he had paid some legal fees from the money held in his Westpac bank account.
154.The wife says the husband’s evidence about the use he has made of his capital is unclear and that it is an artificial distinction to say that he bought the car from capital and paid the legal fees from savings. The wife’s counsel submitted on behalf of the husband that the husband, like the wife, had used capital for the payment of legal fees. He says to include the motor vehicle as an asset and also to add back the husband’s legal fees would be “double dipping.”
155.It is evident, that both parties have paid legal fees from their respective savings account into which the sum divided at the time of separation was paid. These savings for each of the parties have been used for various purposes since separation. The wife says that she sold two motor vehicles which were transferred into her name pursuant to interim consent orders of August 2008 and that the proceeds of $36,000.00 were deposited into her account.[12] She says that following the division of the joint account at separation she saved money in this account which she said peaked at $101,000.00 in October 2008. She says in her affidavit that the balance subsequently reduced to its current value of $53,000.00, although, the balance sheet shows a somewhat higher figure than this. The wife says she used the account to pay the costs of a trip with she and [X] to England in 2008/2009 and that she also used it to pay living expenses. She says she used the sum of $30,000.00 from the account to pay the last two accounts she has received from her solicitor and that she paid solicitor’s fees in the sum of $16,000.00 from her earnings.
[12] Paragraph 127 of wife’s affidavit sworn and filed 12 February 2010.
156.The husband’s counsel submitted on the one hand that he thought there should be consistency and that if as he contended, the husband’s paid legal fees were not to be added back, the wife’s should be treated similarly. On the other hand, he pointed to the wife’s acknowledgment that $30,000.00 for her legal fees had come from her savings. He submitted that because of this concession by the wife, $30,000.00 of her legal fees should be added back into the pool. While it appears from the joint balance sheet that the wife accepts that the $46,254.00 which she has expended on legal fees should be added back into the asset pool, in submissions the wife’s counsel said that part only of the wife’s paid legal fees should be added back.
157.The Court has a discretion in relation to the treatment of paid legal fees. The relevant principles have been referred to by the Full Court in NHC & RCH [2004] FamCA 633 where the Court said in determining how to use that discretion, regard should be had to the source of the funds. If the funds existed at separation and are such that both parties can be seen as having an interest in them then such funds should be added back as a notional asset of the party who has had the benefit of them. On the other hand, if the funds used to pay legal fees have been generated by a party’s post separation income from his or her own endeavours they would generally not be added back.[13]
[13] Paragraph 58 of NHC & RCH [2004] FamCA 633
158.The difficulty here is that it is evident that both parties have paid legal fees from savings accounts into which they deposited their shares of the divided joint account following separation. To quantify the amount in the case of the husband is very difficult as the evidence is not clear.
159.Even in regard to the wife the issue of the source of the payment of legal funds is not clear given subsequent deposits into the account. At the same time it has to be acknowledged that her evidence about this is much more precise than that of the husband’s. However, while she says she has paid $30,000.00 from her savings account for legal fees, she also says that this was paid in relation to her last two accounts and that earlier amounts were paid from her earnings. There has been a significant movement in the wife’s account since separation given her evidence referred to above that post separation savings have been put into it. There is some artificiality about the treatment of the $30,000.00 in respect of paid legal fees these circumstances.
160.The Court is of the view that this is a matter where paid legal fees of each of the parties should be treated in a similar manner and that in the circumstances of this matter including the relatively long period of time since separation, the lack of clarity referred to above and the fact that the sums expended on legal fees are not so dissimilar, the Court prefers to adopt the approach of not adding back any amount in respect of paid legal fees for either party.
TABLE OF ASSETS AND LIABILITIES
| Asset | H/W/J | Value | |
| 1 | HSBC UK Bank Account #[5] | H | $256,890.00 |
| 2 | Westpac Bank Account #[3] | H | $1,314.00 |
| 3a 3b 3c | [N] Stock (i) 8,496 shares acquired under the “2000 Employee Stock Purchase Plan” (ii) 13,992 restricted stock units (iii) 26,687 employee share options. | H | $137.638.00 $226,670.00 $360,636.00 |
| 4 | 2007 Land Rover Motor Vehicle | H | $31,600.00 |
| 5 | [Z] Policy surrender value | H | $17,539.00 |
| 6 | Household Contents | H | $5,000.00 |
| 7 | [Z] Superannuation | H | $51,641.00 |
| 8 | HSBC Bank Accounts #[7] #[1] | W | $59,000.00 |
| 9 | First Direct Bank Account | W | $271,195.00 |
| 10 | Household Contents | W | $5,000.00 |
| 11 | Jewellery & Paintings | W | $4,360.00 |
| 12 | BMW Convertible Motor Vehicle | W | $45,000.00 |
| 13 | [A] Superannuation | W | $64,000.00 |
| TOTAL | $1,537,483.00 |
Liabilities
Ownership
Wife’s value
16
Income tax payable in respect of [N] Shares (not including interest or penalties)
H
$102,846.00
17
Capital gains tax
H
$17,354.00
18
Income tax on options
H
$167,696.00
19
Motor vehicle loan
W
$46,194.00
TOTAL
$334,090.00
NET ASSETS: $1,203,393.00
Contributions
161.It was submitted on behalf of the husband that the asset pool should be divided on the basis of 55% to him and 45% to the wife. This, he said, took into account what were asserted were his superior initial financial contributions and also the level of his financial contributions during the marriage and post separation. The wife asserts that contributions should be assessed as equal.
Initial contributions
162.The parties commenced cohabitation in 1999. The wife says that at that time she had an interest in a property which she purchased in [K], England in May 1998, and also her interest in her United Kingdom pension endowment schemes. She says in her affidavit that the husband had no assets or funds at the commencement of the relationship.
163.The husband, however, says that he estimates that he made a profit in the sum of £18,000.00 from a property he sold in 1998 and that he accumulated savings of about £20,000.00 while working in Bolivia.
164.The husband says that the wife’s former fiancé had contributed to the purchase of the property at [K]. His evidence is that the wife told him that her former fiancé would be entitled to a payment in respect of his share of £7,000.00, and that he gave her this amount and commenced living in this property with the wife in about August 1999. The husband says that he also paid the sum of £3,5000.00 in respect of credit card and other debts of the wife. The wife says that she continued to pay the mortgage and other expenses related to the property.
165.In submissions, counsel for the wife acknowledged that the wife did not dispute the fact that the husband had some money available to him at the commencement of the relationship which was sufficient for him to give her the £7,000.00 which the husband says she paid to her former partner. It appears, however, that she does not acknowledge the payment of the sums referred to by the husband in respect of her credit card. The wife’s counsel submitted that it was unlikely that the husband had accumulated the savings he referred to in his evidence, given that he contributed only £2,000.00 to the purchase of a further property after the [K] property was sold.
166.Some doubt then is placed on the evidence of each of the parties. Certainly, the husband’s initial contribution was higher than acknowledged by the wife in her affidavit. However, it may not have been as high as the husband claims. He has no evidence of the various payments he describes making some eleven years ago. The Court concludes that significant initial contributions were made on behalf of each of the parties although most likely favouring the wife to some degree.
Contributions during the relationship
167.The property at [K] was sold in about January 2000. The wife says that after the costs of sale and discharge of the mortgage, net proceeds were approximately £10,000.00 (equivalent to $25,000.00). The parties purchased a property in [O] in the south of England for the sum of £200,000.00
168.The wife says that she applied the net proceeds of the sale of the [K] property towards this purchase and that the balance of the purchase came from borrowings and the savings of both she and the husband.
169.The husband says that the proceeds of the [K] property were approximately £15,000.00 and that he contributed a further amount of £2,000.00. It is not clear whether he is referring to net proceeds. The property was demolished and replaced with a new house in 2002.
170.The husband says that a significant amount of the funds for this work came from stock held in his name, an insurance policy which he cashed in and cash funds that he accumulated prior to the relationship. During the relationship both parties were employed, apart from the wife’s short period of maternity leave. The evidence is that the earnings of both were used to fund the borrowings for this property and that their income was paid into a joint account.
171.The wife says that the relative earnings of she and the husband fluctuated during the relationship. She says that in the later stages of the relationship taking into account other employee benefits such as shares, the husband’s income has been greater than hers.
172.The parties have both been earning relatively similar incomes during much of the relationship, although as acknowledged towards the end of the relationship the husband’s income exceeded the wife’s. The husband was granted a significant number of share options between October 2002 and September 2004. The wife says the husband paid child support for [Y] from the joint account from 1999 to 2005. She says these payments were in the sum of £400.00 per month which represented about $1,025.00 Australian dollars per month in June 2000. The husband does not appear to dispute the wife’s evidence about this. The Court finds that direct financial contributions during the relationship slightly favour the husband.
173.This was not a matter where contributions, other than financial contributions, to the acquisition, conservation or improvement of property were treated as a significant issue by either party.
Contributions to the welfare of the family
174.[X] was approximately 12 months of age when the husband left the matrimonial home. The husband as has been discussed continued to travel overseas. While the wife had the assistance of au pairs and a nanny the evidence is clear that she was primarily responsible for [X]’s care, including her direct care when she was not working. The contributions to the welfare of the family for this twelve month period were predominately those of the wife.
Post separation contributions
175.In December 2006 the parties sold the property, [omitted], and received £150,000.00 each. This is retained in the respective bank account of each of the parties. In the period following separation in early 2007, the wife has continued to be predominately responsible for [X]’s care. The husband has paid child support although the quantum of child support has been a contentious issue between the parties. The husband currently pays $1,021.00 per month.
176.The husband’s earnings have generally exceeded the wife’s over the post separation period. In particular the husband’s counsel referred to the husband being granted during the 2006-2008 calendar years a total of 13,997 restricted stock options whose value has been referred to previously. These shares were granted between June 2006 and December 2008. They are particularly attributable to the post separation period.
Summary
177.The parties lived together for approximately eight years and have been separated for approximately three years. The analysis of contribution has to take into account the shares, stock units and share options which the husband has contributed during the period of cohabitation and also post separation. The total value of this stock is a significant percentage of the asset pool of the parties. [X] was born late into the marriage. The wife’s earnings have been generally comparable to the husband’s except perhaps in more recent years. However, she contributed substantially to the welfare of the family by being the predominant carer of [X] both in the last twelve months of the marriage and in the three years post separation. Overall, the Court assesses that the division of net assets on the basis of contributions should be 52% to the husband and 48% to the wife.
Section 75(2) factors
178.It was submitted on behalf of the husband that there should be no adjustment in respect of section 75(2) factors. The wife’s counsel submitted that there should be an adjustment in favour of the wife should the parents be living in some proximity so that overall the wife would receive 60% of the net assets.
179.The most relevant section 75(2) factors arising from the evidence and referred to in submissions made on behalf of the parties are as follows:
Section 75(2)(a) The age and state of health of each of the parties.
180.The evidence is that the parties are both in good health. They are both relatively young.
Section 75(2)(b) The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment.
181.The husband’s financial statement discloses a weekly income of $4,410.00 and tax of $1,568.00. The wife’s financial statement discloses a weekly income of $3,081.00 and tax of $858.00. The evidence is that the wife has had the benefit of some salary sacrificing. She also says that she and other company employees have been required to take a pay cut. The husband has historically had the benefit of shares, share options and stock units although of course he also has income tax liability. The financial resources of both parties are similar. Both parties have good earning capacity although it appears that the husband’s is greater than that of the wife.
Section 75(2)(c) Whether either party has the care or control of a child of the marriage who has not attained the age of 18 years.
182.The Court proposes to make orders which will mean that [X] will spend more time with the wife than with the husband.
Section 75(2)(e) The responsibilities of either party to support any other persons and
183.The husband’s fiancée, Ms S, was not working at the time of the hearing although the evidence is that in the past she has generally been employed.
Section 75(2)(m) If either party is cohabitating with another person, the financial circumstances relating to the cohabitation.
184.Generally this does not seem to be a significant issue in this matter although the wife’s counsel referred to Ms S sharing certain household expenses with the husband.
Section 75(2)(n) The terms of any order made or proposed to be made under section 79 in relation to the property of the parties.
185.This is a matter where under the proposed orders of either of the parties the wife would receive a cash sum. The Court proposes to make orders that the husband pay the wife a cash sum.
Section 75(2)(na) Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future for a child of the marriage.
186.The husband currently pays child support and is likely to do so in the future.
Summary
187.Considering the factors set out above the Court is of the view that taking into account the husband’s somewhat greater earning capacity and the wife’s greater responsibility for the care of the child into the future, it is reasonable to make a slight adjustment of 1.5% in favour of the wife in respect of section 75(2) factors.
188.The result will be that the net assets of the parties should be divided 50.5% in favour of the wife and 49.5% in favour of the husband.
Just and Equitable
189.50.5% of the net assets represents a sum of $607,713.47. The wife presently has assets (including superannuation) in the sum of $448,555.00 and a liability in the sum of $46,194.00. Total net assets in her possession are therefore $402,361.00. In order for her to retain net assets in the sum of $607,713.47 the husband accordingly, should pay her the sum of $205,352.47.
190.As discussed, this is a sum which the husband should be able to pay drawing on the balance in his bank account. The husband will otherwise retain all assets in his possession. Each of the parties will be responsible for any liabilities in their respective names.
191.In the circumstances of this matter, the Court is of the view that this represents a just and equitable outcome for the parties.
I certify that the preceding one hundred and ninety-one (191) paragraphs are a true copy of the reasons for judgment of Walker FM
Associate:
Date: 3 June 2010
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