Malave & Ratcliffe
[2015] FCCA 201
•5 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MALAVE & RATCLIFFE | [2015] FCCA 201 |
| Catchwords: FAMILY LAW – Property – 22 year relationship – husband having care of children. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 72(1), 75(2), 79(2), 79(4) |
| Cases cited: Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116 Irish v Michelle [2009] FamCA 66 Pavli v Beffa (2013) 48 Fam LR 677; [2013] FamCA 144 Re David (1997) 22 Fam LR 489; (1997) FLC 92-776 Stanford v Stanford (2012) 247 CLR 108; (2012) 293 ALR 70; (2012) 47 Fam LR 481; [2012] HCA 52 |
| Articles, papers and books: Altobelli T, ‘When a child rejects a parent: Why children resist contact’ (2011) 25 Australian Journal of Family Law 185 Baker A J L, ‘The Long-Term Effects of Parental Alienation on Adult Children: A Qualitative Research Study’ (2005) 33 The American Journal of Family Therapy 289 Cox M, Bridging the gap on parental alienation: A survey for legal and mental health professionals in family law (Psy.D. dissertation, Alliant International University, Los Angeles, California, 2010) Dissertations and Theses: Full Text. Publication No. AAT 3421110 Diagnostic and Statistical Manual of Mental Disorders (5th Ed) Fidler B J and Bala N, ‘Children Resisting Postseparation Contact With A Parent: Concepts, Controversies, and Conundrums’ (2010) 48(1) Family Court Review 10 Gardner R A, ‘Should Courts Order PAS Children to Visit/Reside With the Alienated Parent? A Follow-up Study’ (2001) 19(3) The American Journal of Forensic Psychology 61 Gardner R A, The Parental Alienation Syndrome: A Guide for Mental Health and Legal Professionals (Creative Therapeutics Inc, 2nd edition, 1998) Papaleo V and Di Stefano T, ‘Something Old, Something New, and Something Borrowed: Considering Parental Alienation from a Different Perspective’ (paper presented at Family law Conference: Reclaiming the Ground, New Zealand Law Society Family Law Conference, New Zealand, 2013) Saini M, Johnston J R, Fidler B J and Bala N, Chapter 13, ‘Empirical Studies of Alienation’ in Kathryn Kuehnle and Leslie Drozd (eds), Parenting Plan Evaluations: Applied Research for the Family Court (Oxford University Press 2012) 399 |
| Applicant: | MS MALAVE |
| Respondent: | MR RATCLIFFE |
| File Number: | MLC 5843 of 2012 |
| Judgment of: | Judge Riley |
| Hearing dates: | 3, 4, 5, 10, 11, 12, 15 and 24 December 2014 |
| Date of last submission: | 24 December 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 5 February 2015 |
REPRESENTATION
| Counsel for the applicant: | Mr Williams |
| Solicitors for the applicant: | Pearsons Lawyers Pty Ltd |
| Counsel for the respondent: | Mr A Combes |
| Solicitors for the respondent: | Alpass & Associates |
| Counsel for the independent children’s lawyer: | Mr Marchetti |
| Solicitors for the independent children’s lawyer: | Victoria Legal Aid |
ORDERS
The mother and father have equal shared parental responsibility for [X], born on [omitted] 2004 (“[X]”) in relation to major long term issues about:
(a)[X]’s name; and
(b)changes to the [X]’s living arrangements that make it significantly more difficult for [X] to spend time with a parent.
The father have sole parental responsibility for [X] in relation to all other major long term issues including:
(a)[X]’s education (both current and future);
(b)[X]’s religious and cultural upbringing; and
(c)[X]’s health;
on the conditions that:
(d)the father contact the mother in writing and provide his views about any such issue;
(e)the father consult with the mother with regard to any such issue;
(f)the father and mother make a genuine effort to come to a joint decision about any such issue; and
(g)if no agreement is reached between the parents, then within 14 days the father make the final decision and advise the mother in writing of the decision about any such issue.
[X] live with her father.
Within seven days:
(a)the independent children’s lawyer provide a copy of these orders and reasons to Ms B; and
(b)the mother and father take all steps necessary to engage the services of Ms B to assist them to reunify [X] with her mother.
The mother, the father, [X], [Y], born on [omitted] 1997 (“[Y]”), and [Z], born on [omitted] 2001 (“[Z]”), and, if they wish, [V], born on [omitted] 1993 (“[V]”), and [W], born on [omitted] 1994 (“[W]”), attend upon Ms B as she directs.
The mother, the father, [X], [Y] and [Z] and, if they wish, [V] and [W] attend such courses or counsellors as Ms B directs.
Each parent provide a copy of these orders and reasons to any counsellor if Ms B so directs.
The mother and father pay in equal shares the costs of their and any of the children’s attendances on Ms B, and any course or counsellor she directs any of the children to attend.
The mother pay the costs of any course or counsellor Ms B directs her to attend individually.
The father pay the costs of any course or counsellor Ms B directs him to attend individually.
The father be restrained from allowing [X] to attend upon Ms S unless Ms B recommends otherwise.
[X] spend time with her mother:
(a)between 2pm and 4pm each Saturday commencing on 8 August 2015;
(b)between 1pm and 6pm each Saturday commencing on 5 September 2015;
(c)between 10am and 6pm each Saturday commencing on 3 October 2015;
(d)between 10am each alternate Saturday to 6pm the immediately following Sunday commencing 31 October 2015; and
(e)such other or additional times as the parents may agree.
Changeover occur outside Coles at the [omitted] Shopping Centre or otherwise as the parents may agree.
Until further order, the father be restrained from abusing, insulting, belittling, rebuking or criticising the mother to or in the presence or hearing of [X] and from permitting any other person to do so.
Until further order, the mother be restrained from abusing, insulting, belittling, rebuking or criticising the father to or in the presence or hearing of [X] and from permitting any other person to do so.
The mother be restrained from hitting [X] or using any form of corporal punishment against her.
The mother be restrained from verbally abusing [X].
The appointment of the independent children’s lawyer be discharged on 5 February 2016.
The proceeds of sale of the former family home be distributed between the parties so that the husband receives 65% and the wife receives 35% of the proceeds.
The husband and wife each be solely responsible for the debts in their respective names.
Unless otherwise specified in these orders and save for the purpose of enforcing any monies due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of that party as at the date of these orders;
(b)monies standing to the credit of each party in any bank account be deemed to be in that person’s possession;
(c)each party forego any claim he or she may have to any superannuation benefits belonging to or earned by the other;
(d)insurance policies remain the sole property of the beneficiary named therein;
(e)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(f)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
IT IS NOTED that publication of this judgment under the pseudonym Malave & Ratcliffe is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 5843 of 2012
| MS MALAVE |
Applicant
And
| MR RATCLIFFE |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for parenting orders in respect of [X], born [omitted] 2004 (“[X]”), and an application for property adjustment under s.79 of the Family Law Act 1975 (“the Act”).
THE PARENTING APPLICATION
Background
[X]’s parents were married in 1992. They separated under one roof on 14 May 2012 and separated physically on 26 June 2012. [X] was almost eight years old at the time of separation and is now 10 years old. [X] is the youngest of five children. Her siblings are:
a)[V] (“[V]”), born on [omitted] 1993, who was 19 years old at the time of separation, and who is now 21 years old;
b)[W] (“[W]”), born on [omitted]1994, who was 18 years old at the time of separation, and who is now 20 years old;
c)[Y] (“[Y]”), who was born on [omitted] 1997, and who was 14 years old at the time of separation and who is now 17 years old; and
d)[Z] (“[Z]”), who was born [omitted] 2001, and who was 11 years old at the time of separation and who is now 13 years old.
It was common ground that the mother was the primary carer of the children during the marriage and the father was the primary breadwinner. The parents conducted a [omitted] business in a partnership in which the father worked full time and the mother worked part time, attending to the financial aspects of the business. They were each paid about $70,000 per year, presumably for income-splitting purposes.
This is a very sad case. Since separation, all of the children have lived with their father and become estranged from their mother. To an extraordinary extent, the parents have allowed their wish to hurt each other to overwhelm their wish to foster the wellbeing of their children. The parents have engaged in attack and counter-attack without regard to the impact on their children.
It is well established that children in high conflict separations, such as this one, are at grave risk of suffering long-term psychological damage. [X] is at particular risk, as she is very young and still developing psychologically. Even before separation, [X] suffered from anxiety. Her continuing high levels of anxiety have been recently confirmed by the independent family consultant, Ms J.
None of the children presently have a relationship with their mother. As will be seen, the mother’s behaviour towards the children or some of them has been in some ways neglectful and abusive. However, her behaviour was at the lower end of the spectrum and was no where near the level of those cases where the court orders that there be no contact between a parent and child or that communication between a parent and child be only by way of letters, cards and gifts. The children in this case would all benefit from having a relationship with their mother and spending time with her.
The parents should know that their high-conflict behaviour is not normal. Most separating parents are able to put aside their own pain, for the benefit of their children, and treat the other parent as they would like to be treated themselves, that is, with respect and courtesy. Most separating parents are able to talk to each other civilly and cooperatively make arrangements in the best interests of their children, including arrangements for the children to spend time with each parent.
It is not too late for the parents in this case to rule a line under what they each have done, to start focussing on their children’s needs and to learn to speak to each other as reasonable adults. However, it is likely that the parents will need a considerable amount of professional assistance to achieve this.
Proposals
The mother and the independent children’s lawyer submitted that the father has severely alienated all of the children from their mother. The mother and the independent children’s lawyer proposed that:
a)parental responsibility for [X] be allocated along the lines ordered in Pavli v Beffa (2013) 48 Fam LR 677; [2013] FamCA 144;
b)[X] live with her mother; and
c)[X] spend time with her father and her siblings after a suitable break.
The father submitted that the mother was neglectful and abusive of a number of the children. His proposal developed during his cross-examination. At the start of the hearing, it was that:
a)he have sole parental responsibility for [X];
b)[X] live with him; and
c)[X] spend time with her mother if and when a psychologist, Ms S, is able to overcome [X]’s anxiety about seeing her mother.
By the end of the hearing, the father proposed that:
a)parental responsibility for [X] be allocated along the lines ordered in Pavli v Beffa;
b)[X] live with her father; and
c)[X] spend time with her mother and father on a 50:50 basis if and when a psychologist, Ms S, is able to overcome [X]’s anxiety about seeing her mother.
Neither parent sought orders in relation to [Y] or [Z], who are now 17 and 13 years old respectively. The court does not have jurisdiction in relation to [V] and [W].
School attendance
It was common ground that the father went to work early and it was left to the mother to get the children to school. [X]’s school records for the period 7 February 2011 to 13 June 2012 indicate that she was late for school on 117 days and absent on 21 days, including on 12 days when no explanation for her absence was offered by a parent. [Z]’s school records are to similar effect.
In cross-examination, the mother initially denied having any difficulty in getting the children to school. However, when the school records were produced, the mother conceded that she did have difficulty getting the children to school on time. The mother did not dispute the school records and I accept that they are accurate.
Because of the mother’s initial denial about this matter, I am not satisfied that the mother was an entirely honest witness. Moreover, it is clearly fundamental to children’s wellbeing that they attend school regularly and on time. They should not have the stress and embarrassment of being frequently late for school, or have their academic prospects affected by missing the start of the school day.
The mother said that it was hard to get [Z] up in time for school because he had a sleep disorder, for which he attended the [omitted] Hospital sleep clinic. He also had dyslexia and a problem with his bowels. That may all be accepted. However, as will be seen, after the father took over the care of the children, [Z]’s problems with sleep and school attendance were resolved. Consequently, I consider that the mother’s failure to regularly ensure [X] and [Z] attended school on time was indicative of neglectful parenting.
[X]’s speech difficulties
An extract from [X]’s student profile at her primary school indicates that 2010 was her prep year. It says, under the heading, “other significant information”:
Speech is very bad (2010)
The document indicates that [X] was referred to a Department of Education speech therapist in term 2, 2010, and had phonics and speech support in terms 3 and 4 of 2010, a speech program with a speech pathologist in 2011, a reading recovery program in 2011 and speech support in 2012.
In 2010, the class teacher’s comments were:
Lovely, gorgeous girl. Speech + phonics needs work!
In 2011, the class teacher’s comments were:
Beautiful! Very self-conscious of ability and speech.
A letter dated 18 July 2012 from a speech pathologist with the Department of Education and Early Childhood Development (exhibit 8) says that:
· [X] has received numerous blocks of therapy (ten sessions per block) from four separate Department of Education Speech Pathologists, over the course of the last three years. Therapy targets have focussed on reducing articulation errors and increasing intelligibility; however minimal progress has been made.
· Speech Therapy Assistants have been used at school with [X] in conjunction with Speech Therapy sessions.
· There is no evidence of support from home, despite contact with [X]’s mother … conveying the need to carry out home therapy.
· Mother has been consistently difficult to contact. Phone calls home are rarely returned and communication is minimal despite efforts from the Speech Pathologists.
The mother said in cross-examination that:
a)[X] had “a little bit” of speech difficulty;
b)she had speech therapy for, “A year, six months, a year, I don’t know”;
c)she did not recall the speech therapists contacting her;
d)she spoke to them at some stage;
e)she was difficult to contact in July 2012, just after separation;
f)when asked whether she had been aware of how seriously the Department of Education had taken [X]’s speech difficulties, “there were little areas of speech and letters that she left off, but you could understand her”; and
g)“I’m not sure that it was serious in the extent that you’re implying.”
I consider that the mother has minimised [X]’s speech difficulties. Being able to speak clearly and well is fundamental to social interaction and many aspects of education and work, which is presumably why the Department of Education has put such a lot of money and effort into working on [X]’s speech. The mother thought [X]’s speech difficulties were minor and did not even know how long [X] had been receiving speech therapy at school.
The mother said that she had been difficult to contact in July 2012. That is understandable, as it was just after separation. However, although the Department of Education letter was dated July 2012, it certainly did not indicate that the attempts to contact the mother had been confined to that month. On the contrary, the gist of the letter is that the mother had been difficult to contact throughout the three years that the Department of Eduation had been seeking to enlist the mother’s support to do exercises at home with [X].
The mother was asked in cross-examination whether she had carried out any home therapy. She said that she did. However, because of my concerns about the mother’s credibility, because of the way the evidence about the mother’s home therapy emerged, and because it conflicts with the Department of Education’s letter, I do not accept that the mother did assist [X] at home with speech therapy exercises as required.
The mother’s failure to adequately assist [X] with her speech therapy, and her lack of appreciation or acknowledgement of the scope of the problem, indicate neglect of a serious issue affecting [X]’s functioning.
Breakfasts and lunches on school days
The mother conceded in cross-examination that the school principal had telephoned her on one occasion prior to separation to indicate that she was not happy with the meals that the mother was providing to the three younger children.
The father alleged that the school principal had told him in May 2012 that:
a)the school had given [Z] breakfast at school every day for at least the previous 12 months; and
b)the school had supplemented [X]’s lunches.
The mother said in cross-examination that in 2011, [Y] and [Z] refused to have breakfast at home and instead would just have an Up and Go. She said that [Z] chose to tell the primary school about this, so they gave him toast for breakfast. The mother said that [Z] would not have Weet-Bix, even though it was provided and in the pantry.
The mother said in cross-examination that a school report, which was not tendered, said that, at times, lunch was not provided. The mother said that she strongly denied that. She claimed that she gave the children lunch every day, even if she took it to them after the lunch bell had rung.
The mother said in cross-examination that the father had informed the school that the mother had not been feeding the children and that is why the school raised the matter with her. That claim is completely implausible. Although the father did enlist the support of the school in his dispute with the mother, I consider that the school would only have contacted the mother about the meals she was providing for the children if they had concerns based on their own observations.
The mother implicitly conceded that she had not given [Z] breakfast for a considerable period of time. As noted, I have concerns about the mother’s credibility. As will be seen, I also have concerns about the father’s credibility. However, in relation to this matter, I prefer the father’s evidence about these matters. They indicate neglectful parenting on the mother’s part.
The mother’s relationship with [W]
The mother conceded in cross-examination that her relationship with [W] was ruptured from a few months after separation and had in fact been ruptured before separation. However, the mother then sought to resile from her concession that her relationship with [W] had been ruptured before separation and claimed the relationship merely had “some troubles”. [W] and her mother have not spoken amicably since separation, on 14 May 2012. They have seen each other since then in some situations of conflict.
The mother said in cross-examination that [W] was “at times, very rude and abusive”. The mother said that [W] liked to rearrange things in the kitchen and left used tampons in places other than the bin. The mother conceded that she had contributed to her poor relationship with [W]. The mother said that her contribution was that they should have chatted more and the mother should have listened to [W] more.
The mother denied that she was violent or abusive to [W] or any of the children. However, she did concede that she yelled at the children. When pressed about physical violence, the mother said that she had disciplined [W], but not to the point that it was abuse.
When reminded of the father’s evidence that in August 2009, he had seen the mother punch [W] in the face and give her a blood nose, the mother said that, on that occasion, she had slapped [W] with an open hand across the face. The mother said in her affidavit that [W] had called her a “fucking cunt”. The mother said in cross-examination that she did not recall whether [W] had a blood nose, but thought it was unlikely, from a slap.
When reminded of the father’s evidence that, in 2011, the mother had thrown a portable CD player at [W], the mother said that she had not thrown the CD player at [W] but had thrown it into her room, onto her bed.
The mother conceded in cross-examination that she had hit [W] with a wooden spoon on a number of occasions when she was between the ages of eight and 12.
The mother agreed in cross-examination that she had arranged for [W] to see a psychologist, Ms D. The mother said [W] was “feral”. The mother said that the father had taken [W] to all but the first two appointments. The father denied that he had taken [W] to any appointments and said he had no contact with Ms D until well after separation. However, in a report to the police on 14 May 2012, the day of separation, the father said that he had had several conversations with Ms D. I consider that the father’s statement to the police on that point was accurate. Consequently, I find that the father did not tell the truth to the court when he said that he had had no contact with Ms D until well after separation. I find that the father was not an entirely honest witness.
In relation to who took [W] to the appointments with Ms D, I consider on balance that the father did take [W] to all but the first two appointments. I am bolstered in that conclusion by the father’s own evidence that he contributed to the care of the five children by taking them to some of their commitments.
The mother agreed that Ms D had made some significant reports to the Department of Human Services (“DHS”) against the mother alleging maltreatment of the children. The mother agreed in cross-examination that she had previously responded to those allegations by saying that Ms D was possibly having an affair with the father. In cross-examination, the mother said that she considered that Ms D’s judgment had been clouded by an emotional attachment to the father. The mother made a complaint about Ms D to the Australian Psychological Society alleging misconduct.
[W] swore an affidavit in these proceedings in support of her father’s position. After a good deal of discussion, the father decided not to rely on that affidavit and expose [W] to cross-examination. I have not read [W]’s affidavit. Nevertheless, the mother said in cross-examination, in response to an allegation made by [W] in her affidavit, that [W] was lying and often lies.
The mother has a misconception about what constitutes violence. Slapping a person across the face, hitting a person with a wooden spoon and throwing a CD player at a person are all well within the normal meaning of violence. Throwing a CD player onto a person’s bed could constitute violence, depending on the circumstances.
In any event, in view of the mother’s patently false denial that she was ever violent towards [W], and in view of my other concerns about the mother’s credibility, I do not accept the mother’s version of these events. I prefer the father’s evidence. I find that the mother punched [W] in the face in 2009, causing her to have a blood nose, and threw a CD player at [W] in 2011. On the mother’s own evidence, I find that she hit [W] on a number of occasions over the years with a wooden spoon. These are all acts of violence.
The mother claimed without challenge and I accept that she taught [W] and [V] to drive and the father would not go in a car with a learner driver. This was one of the few positives about the mother that is in the evidence before the court.
The mother’s violence towards [Z]
The father said in his affidavit that, in March 2011, he saw the mother hitting [Z] in the head with a closed fist and the other children trying to pull him away from his mother. The mother denied in cross-examination that she had hit [Z] in the head or at all. She said that [Z] had tried to run off, she grabbed the back of his hoodie, it pulled on his throat and she let go. The mother reiterated at this point that she is not violent. I prefer the father’s evidence in regard to this matter and find accordingly.
The mother later conceded in cross-examination that she had hit [Z] on a couple of occasions when he was under eight years old. She said she had smacked him on the bottom.
[X]’s pre-separation anxiety
The mother conceded that, prior to separation, [X] had suffered from anxiety. The mother said that she dealt with this by reassurance. The mother said that she did not seek any professional assistance because Ms D had just made the situation with [W] worse.
The bond between the children
The mother conceded in cross-examination that, prior to separation, the children had been close to each other and drew on each other for support. Notwithstanding that, the mother only sought for [X] to live with her. The mother explained in cross-examination that she would be happy for any of the children to come and live with her, but understood that she could only seek orders in relation to [X] because of her age.
Separation
The parents separated under one roof on 14 May 2012, when the mother said that the father assaulted her. The mother said and the father conceded that he grabbed her mobile telephone from her. The mother said and the father conceded that the mother instructed one of their sons to call the police. He did not do so. The mother said the father squeezed and shook her wrist, causing her to drop the telephone. The father denied that, saying he held her wrists but did not apply force. The father volunteered that he pulled the home telephone out of the wall. The father said that the mother’s attempt to call the police was an overreaction to him taking her mobile telephone from her.
Nevertheless, the father then conceded that he then went to the police station himself and made a statement to the police. When asked why, the father said it was because he had repeatedly asked the wife to come and spend time with the family and she had just isolated herself on her telephone. The father then said that the mother had set up a situation and been deliberately provocative.
The father reported to the police on 14 May 2012 that the mother had sexually abused one or more of the children. The father said that he had not reported the matter earlier because he had no proof. However, he said that he made the sexual abuse allegation on 14 May 2012 because he believed it to be true.
The mother reported her allegation that the father had assaulted her to the police. The police interviewed the father, who denied the allegations. The mother claimed that the father was arrested and charged with assault. However, according to a report by DHS, discussed below, the police interviewed [V], who said the mother had exaggerated, and the police decided to take no further action. As there was no evidence about the outcome of the alleged assault charges and due to my concerns about the mother’s credibility, I conclude that there were no such charges and the mother fabricated that evidence.
The police sexual abuse unit subsequently interviewed [Z] and [Y], but not the mother. They did not pursue the sexual abuse allegations. I conclude that the father made those allegations without reasonable foundation.
Following 14 May 2012, the parents were separated under one roof for about six weeks until 26 June 2012. The father slept in the main bedroom and the mother slept on a mattress in [X]’s bedroom.
The father altered his working hours to be at home to get the younger children to school.
Report to DHS: 15 May 2012
A report was made to DHS on 15 May 2012 concerning the emotional and psychological impact on [Y], [Z] and [X] arising from witnessing family violence between the parents. The report indicated that there had been an argument concerning alleged infidelity by the mother, the father had taken the mother’s mobile telephone, the mother had tried to get it back, the father had pushed her out of the way and he had then left the family home. Both parents made complaints to the police.
The police spoke to [V] who said that her parents had been arguing over the last few years as a result of the mother’s infidelity. [V] said that the mother had exaggerated about the father assaulting her. The police reported to DHS that there were no physical injuries, no assault, no damage and were taking no further action.
DHS sent letters to each parent advising them of the impact of domestic violence upon children. DHS considered that there was no further role for it at that stage.
Reports to DHS: 2 to 20 June 2012
A report was made to DHS on 2 June 2012 about the exposure of [Y], [Z] and [X] to ongoing family violence and the exposure of [Z] to sexually inappropriate activity by his mother.
On 6 June 2012, a second reporter raised concerns with DHS about:
a)the mother being highly unusual and inappropriate in her parenting over a number of years;
b)[Z] frequently presenting at school in no state to learn;
c)[X] saying at school that she was not allowed to talk about what happened at home;
d)the mother having been violent towards an older sibling;
e)the mother having driven erratically with the children in the car;
f)the mother often going into rages; and
g)the mother having assaulted [W], [Y] and [Z] in the past.
On 20 June 2012, a further report was made to DHS about the mother:
a)having poor mental health;
b)having inappropriate sexual boundaries with [Z];
c)being volatile; and
d)being violent to [W] in the past.
DHS recorded that the mother claimed years of physical domestic violence perpetrated by the father. DHS recorded that the father alleged ongoing verbal abuse by the mother, the mother leaving pornographic material lying around the house, the mother beating [W] since she was three, the mother allowing [Z] to get into bed with her and cuddle her when she was wearing only a top, the mother physically assaulting [Z] 12 months earlier, the mother being violent to the father and the mother having poor mental health.
DHS noted that the Sexual Offences and Child Abuse Investigation Team had advised that it would be taking no further action regarding the mother’s allegedly sexually inappropriate behaviour or assaults. DHS noted that the separation under one roof “appears to be highly toxic emotionally for the entire family.” DHS instituted a safety plan. DHS noted that the school was highly concerned about [Z] and [X] and had linked them to the school counsellor.
The father said in his affidavit sworn on 3 July 2012 that [name omitted] from DHS told him that if he left the children in the mother’s care, DHS would make an application to put the children in foster care. The DHS records do not reflect that assertion. However, the DHS records do note that the father had changed his work schedule to ensure he was home with the children in the morning and this had dramatically improved the children’s presentation at school.
DHS noted that the mother was offered parenting support but she declined. She acknowledged to DHS that she had struggled with a routine for the children due to being in an unhappy marriage and depressed, but said that she did not expect similar problems in the future. DHS noted that the mother’s psychologist reported no significant mental health issues for the mother. (This was confirmed in a psychiatric report in March 2014.) DHS noted that the situation was likely to be having a serious impact on the children emotionally, but that the parents were taking steps to physically separate. On that basis, DHS closed its file.
Intervention order against the father
The mother obtained an ex parte interim intervention order against the father on 25 June 2012, which prohibited him from being within five metres of the mother.
The father and the children moving out
The father maintained that DHS told him to leave the family home with the children and said that they would take the children if he did not show some strong parenting. This claim was not reflected in the DHS records. I do not accept that it is true. The DHS records only indicate that the separation under one roof was toxic and imply that it would be best if one parent or the other left.
On 26 June 2012, the father took the children to stay at his parents’ place. The mother returned to the family home at about 10pm to find the father and the children missing. She eventually contacted the police who rang the father. He sent the mother a text message at 12:21am saying that, on legal advice, he had removed his family to a safe location and that he considered them to be at extreme risk from the mother’s aggressive behaviour and lack of appropriate care.
The changing of the locks at the business: 27 June 2012
On 27 June 2012, the father changed the locks at the parents’ business premises so that the mother could not access the workshop, tearoom or toilet areas. The mother contacted a locksmith, who gave her access to those areas. The father then arrived and made the locksmith leave. Afterwards, the mother was unable to continue working in the business. She later found another job.
DHS report: 26 June to 11 July 2012
On 26 June 2012, DHS received a report that [Y] had disclosed feeling:
fearful of being at home without his father given his mother’s enormous mood swings, violence and lack of care.
On 28 June 2012, DHS received a second report that the mother was seeking to have the children returned to her, which raised safety issues given the mother’s “appalling treatment” of the children and her “double personality”.
On 9 July 2012, DHS received a third report, with the mother alleging the father was violent towards her and the children, and the father alleging the mother was violent towards him and the children, has anger management issues and has inappropriate boundaries with [Z]. The mother also reported to DHS that the father had told the children lies that she did not want them.
DHS also reported that a psychologist, who is understood to be
Ms D, said that [Y] and [Z] had disclosed that their mother hits them, that she cannot stop herself and that she keeps going and going. They also appeared to be frightened of their mother and spoke of her having unusual behaviours and being a poor role model.
The father told DHS that the mother was psychotic and bipolar and needed psychiatric assistance. DHS noted that information from the mother’s psychologist had raised no mental health concerns.
A psychiatric assessment in 2014 disclosed no mental health concerns. Notwithstanding that, the father maintained during his cross-examination that the mother had a personality disorder.
DHS noted that the parents were in the midst of a highly acrimonious separation. In view of the orders made by the court on 4 July 2012, DHS closed its file.
The commencement of these proceedings: 29 June 2012
On 29 June 2012, the mother commenced these proceedings. She sought orders that the children live with her and spend such time with the father as the court deemed appropriate. In her affidavit in support, she alleged a history of the father being violent towards her and alleged that the father was alienating the children from her.
Intervention order against the mother: 3 July 2012
The father obtained an ex parte interim intervention order against the mother on 3 July 2012, which gave the father sole use of the family home and prohibited the mother from being within 200 metres of the family home and the parents’ business premises. The three younger children were included as aggrieved family members. The order restrained the mother from being within five metres of any of the three younger children or contacting or communicating with them by any means. The order was sent electronically to the mother’s solicitors on 4 July 2012. The mother vacated the family home and went to live with her parents. The father and children returned to the family home on
6 July 2012.
Father’s response: 4 July 2012
The father filed a response in these proceedings on 4 July 2012 seeking orders that the children live with him in the family home and spend such time with their mother as the court deemed appropriate. The father also filed a notice of risk of child abuse or family violence alleging that the mother had “struck and physically abused the children on multiple occasions over the years.”
In his affidavit in support, the father alleged that:
a)the mother had long-standing anger management problems;
b)the mother began pursuing internet relationships in 2008 and sent intimate photographs of herself to prisoners in the United States of America;
c)the mother developed an interest in sadomasochism and began attending “S&M” nights;
d)the mother developed an interest in pornography and left it lying around where the children could see it;
e)the father had seen the mother pressed hard up against [Z] in his bedroom wearing nothing but a long cotton top and on another occasion massaging his back in the dark in his bedroom;
f)[V] and [W] had found evidence of the mother’s online affairs through emails on the home computer; and
g)the mother had been violent towards the children over many years but the father had been unaware of much of the abuse until recently.
The father’s sexual abuse allegations against the mother
The father alleged that the mother had sexually abused [Y] and [Z]. The police sexual abuse unit spoke to [Y] and [Z] but did not interview the mother. The authorities took no action in relation to these allegations. They were not pressed at the trial. I conclude that the allegations were without reasonable foundation.
The mother’s letters to a US prisoner
The mother conceded that she had corresponded with a US prisoner during the relationship. I accept the father’s evidence as set out above about this matter.
The mother’s extramarital affairs
The family consultant, Ms J, reported that the mother denied engaging in extramarital affairs. The mother said in cross-examination that she had not denied that at all to Ms J, as she had admitted in her affidavit material that she had engaged in extramarital affairs. The mother said that Ms J was mistaken. I accept the mother’s claims about this matter. It seems to me to be plausible that Ms J was mistaken, given the urgency with which her report was prepared. In view of the mother’s admission of extramarital affairs, it also seems plausible that she began to pursue internet relationships in 2008. I accept the father’s evidence on that point.
The mother’s pornography
The mother in an affidavit denied having a “heavy interest in pornography”. However, this appears to be playing with words. The mother told the family consultant, Ms F, that she had not left pornography lying around, but had kept it in a large, padlocked toolbox. In view of the mother’s admission that she had pornography, the children’s repeated comments that they had seen the mother’s pornography and given my concerns about the mother’s credibility, I accept the father’s claims that the mother left pornography where the children could see it.
The mother’s mental health
Despite the allegations that the mother had a “double personality” and “poor mental health”, a psychiatric report indicates that, at least in 2014, the mother did not have any overt psychiatric problems. Having said that, the mother’s history of violence towards at least some of the children indicates that she had an anger management problem.
The interim hearing on 4 July 2012
The matter came before the court on 4 July 2012 when Judge Turner ordered by consent until further order that:
a)the parents have equal shared parental responsibility for the three younger children;
b)the three younger children live with their father; and
c)[Z] and [X] spend time with their mother each Sunday from 10am until 6pm and for three hours each Wednesday after school or at other times as agreed.
There were also orders for an independent children’s lawyer to be appointed, a family report to be prepared and a request for DHS to intervene. DHS did not do so but said that it had information that might be of interest to the court. There were no orders for [Y] to spend time with his mother.
Developments after the orders of 4 July 2012
[Z] and [X] spent time with their mother in accordance with the orders of 4 July 2012 until at least September 2012.
The mother’s attendance at the family home on 6 July 2012
On 6 July 2012, notwithstanding the interim intervention order, the mother attended the family home at about 8pm. The father found the mother sitting in the lounge room refusing to move. He called the police and so did [Z]. After [Z] told his mother that he had called the police, the mother left of her own volition.
The mother’s disconnection of services etc
The mother conceded that, after she was required to leave the family home, she arranged for the disconnection of the telephone, the internet, Foxtel, gas and electricity. The father claimed that she did that without warning. The mother said that she asked her solicitors to advise the father first. However, for some reason, the message was not communicated. The mother said in her affidavit that she was sorry for the disruption. In her cross examination, the mother said that her barrister insisted that she be apologetic for cutting things off. The mother said in cross examination that the father had adequate notice and “a lot of things” were not cut off until [V] told the mother that the father had arranged for reconnection.
The mother conceded that she cancelled the house and contents insurance and the insurance on the father’s car at that time, but said that she had not done so until after [V] had told her that the father had taken out alternative insurance.
The mother conceded that the nine-seater VW Caravelle was registered in her name and she took it at separation. She said in cross-examination that the father still had his car and [V] also had her own car, so it was not inconvenient for the family. The mother said that she removed the father as an eligible driver on the insurance policy for the VW Caravelle because it was cheaper. The mother denied that her conduct was spiteful.
Clearly, it was not kind and thoughtful of the mother to leave her children without utilities or the large family car in circumstances where she was not 100% sure that they had proper alternatives. The mother’s conduct in this regard is particularly concerning, given that [W] was doing VCE that year.
The father’s letter dated 16 July 2012 to the school
The father sent a letter dated 16 July 2012 to [X]’s school. It said as follows:
[V] is dropping [Z] and [X] to school this morning on my behalf as I am caught up with legal issues.
Since we last spoke a lot has happened… [the mother] took me to an emergency hearing of the Family Court to regain custody. The day prior to this I obtained an Intervention order against her which you will find enclosed. Her attempt to regain custody failed and in fact she was forced to legally sign over custody of all the children to me until the next hearing on 5/10/12. She currently only has access to [Z] and [[X]] on Sunday and Wednesday after school.
The intervention order does not allow her within 200mts of our house, business or schools that the children attend and will remain in force until 15/10/12.
Unfortunately, we are still being traumatised by [the mother’s] latest attacks which have involved cutting off all services eg Foxtel, Internet, telephone, electricity and gas from the family home as accounts were in her name. She has also taken back our family car as she has managed to change leasing into her name and has removed me as insured driver.
I have now isolated [the mother] from all financial support from my business but it has not gone down well. The Family Court agreed to this and she did as well but is now not happy about this and is inflicting as much pain on the family as she can.
I am trying to resolve these issues at the moment and her actions have affected the kids over the holidays. Hopefully things should start to settle soon.
The father said in oral evidence that during the relationship, the mother had controlled the finances. He said that, following separation, he had no access to money until October 2012, and had to beg for money for petrol. It was then put to the father that his letter to the school dated
16 July 2012 said:
I have now isolated [the mother] from all financial support from my business.
The father then said that it was the first four weeks after separation when he had no control of the money whatsoever.
However, I consider that the father’s statement to the school was correct, in that he had regained control of the partnership finances by 16 July 2012 at the latest. That was about three weeks after physical separation and about three months earlier than the father initially claimed. For this reason also, I find that the father was not an entirely honest witness.
DHS report: 11 to 25 September 2012
DHS received a report alleging that the father was not adequately caring for the younger children as the older children are preparing meals and there is no food in the house. DHS considered that the older children preparing meals was not a protective concern. DHS reported that the school had no concerns about lunches being provided and no sign that the children were hungry at school. DHS noted that the father had acted protectively by taking the children to see the psychologist, Ms D. DHS closed its file.
Developments up to September 2012
The father said without challenge and I accept that between July and September 2012, he got the children into a routine in which they would get to school on time and have proper school lunches and evening meals. The mother conceded in cross-examination that, by September 2012, there were no concerns about the children getting to school on time and being appropriately fed.
[V] continued to be on speaking terms with her mother between the father moving back to the family home in July 2012 and September 2012. [W] and her mother barely spoke during that period. [Y] and his mother did not speak at all during that period.
The father said without challenge and I accept that [Z], who had a sleep disorder, dyslexia and difficulty concentrating at school, improved significantly during that period. The father attended a meeting at school in August 2012 to address [Z]’s difficulties. By September 2012, [Z] was regularly sleeping through the night, was attentive at school, and his school performance had improved 100%.
The father said without challenge and I accept that [Z] had been resistant to spending time with his mother since separation and the father had persuaded him to go. [Z] complained that his mother ignored him on the Sunday visits and concentrated on [X].
On 1 August 2012, the father said without challenge and I accept that, when the mother tried to collect [Z] from school, he ran to the principal’s office. The mother left without him.
In mid-August 2012, the father said, without challenge and I accept, that [W] told him that [Z] had told her that the mother, 12 months previously, had made [Z] and [X] watch porn. The father said without challenge and I accept that he arranged for [Z] to see the school psychologist, Ms D, who told the father that [Z] had also told her the same thing.
The father said without challenge and I accept that, in early August 2012, [X] was seen crying at school. She said her mother had told her that she would be living with her mother after October, and the mother had told her that her father was a liar and a nasty, violent man.
The first family report: Ms F: 24 September 2012
A family report dated 24 September 2012 was prepared in this matter by Ms F. Ms F conducted interviews and observations on 8 August 2012, about six weeks after physical separation. Ms F was not required for cross-examination and I accept her evidence. That is, I accept her opinions and observations but do not necessarily accept the truth of everything that she reported having been said to her.
The father conceded to Ms F that [X] still wished to spend time with her mother and still loves her though he claimed that [X] was upset after the visits. The mother told Ms F that, when the mother had gone to school to collect [Z] and [X] for a Wednesday visit, [Z] had refused to go with her and told her that she was tearing the family apart. [X] told Ms F that the mother had yelled at [Z] on that occasion and he was crying.
[Z] told Ms F that he did not trust his mother “because of what she’s done” but his father had told him that he had to keep going to see his mother.
[V] told Ms F that:
“the children with Dad is really good. We’re trying to achieve stability and routine. [Z] is sleeping at night and he’s not yelling any more. There’s no more tantrums. He was very stressed with Mum.
[W] told Ms F that:
life with Dad is better, there’s no more fighting. [Z] and [[X]] are a lot better. [X] seems more energetic and excited.
The mother told Ms F that [W] did not wish to see the mother any more and [Y] did not want to have anything to do with her.
The father told Ms F that the mother had mental health issues, that she had beaten “the crap” out of [W] but that he had not known about it at the time, and that the mother’s time with the children should be supervised.
Ms F said:
During the appointment for this report, [the mother] presented as calm and coherent, but with a level of limited insight about the welfare of the children. [The mother] emphasised [the father’s] role in purportedly alienating the children from her. Instead of discussing their development with a focus on their needs, [the mother] emphasised the children’s relationship with her and focussed on attributing [the father’s] role as the cause of the difficulties. For example, in relation to [W], [the mother] said ‘I had a good relationship with her until 3 years ago. [The father] undermines my authority with her … she says she doesn’t want to see me again.’ (emphasis added)
In relation to the children’s interaction with their father, Ms F said:
During the report appointment, [the father] presented as calm, rational and coherent. He discussed the children’s needs in detail and interacted warmly with each of them. All five children interacted equally warmly with [their father], and during the observation, the atmosphere was warm, co-operative and playful.
Ms F noted that:
All five children present as healthy and well cared for. They were co-operative, articulate and forthright in expressing their views about the family relationships. All expressed positive views about [the father’s] parenting and conveyed a wish to remain living with him.
Ms F said that:
[V] said that she would continue to be in contact with her mother, but would remain living with [her father]. [W] said ‘I won’t talk to mum again … she shouldn’t have the children … life with Dad is better, there is no fighting’. [Y] said ‘I’m not stressed any more, it was all her yelling. She’s aggressive … I don’t want to talk to Mum. She just walks away; she can’t be bothered. I’m not trying to be mean, but there’s nothing I like about her’. [Z] said ‘I’m only going to see Mum because of [X]. I don’t trust her because of what she’s done … some days I want to see Mum, but other days I hate going.’ [Z] said that he would choose to see his mother ‘every one or two weeks’. [X] said that she would choose to see her mother ‘every second Sunday, but I’m not fussed about Wednesday’.
Ms F said the mother:
presents as serious, and while demonstrating some concern for the children’s welfare, as already noted, also presented with limited insight about the effect on the children of the family conflict.
Ms F said the father:
presents as pleasant and appropriately concerned for the children’s welfare.
The mother told Ms F that:
a)she never left pornographic material around but placed it in a large toolbox that had a padlock;
b)she wrote to an American prisoner who was in jail for murder;
c)she bought a book on S&M sex but the father was not interested; and
d)she denied any sexually inappropriate behaviour with [Z], saying that he liked to get into bed with her for cuddles.
The mother told Ms F that the parental relationship failed because the mother read a book about emotionally abusive men and realised her husband was one of them.
In relation to the mother’s alleged abuse of the children, the father told Ms F that he had been preoccupied with work and trusted the mother to look after the children properly.
[V] told Ms F that:
a)her relationship with her mother was heartbreaking;
b)they had better communication than ever but it was superficial;
c)she was trying not to take sides;
d)until two years previously everything had been quite nice;
e)there was a lot of yelling;
f)“Mum would probably hit Dad and he would walk out trying to avoid conflict”;
g)“Mum told the police she was hit in the face and grabbed for years. That’s false”;
h)“Mum did cheat on Dad … she’s into S&M. I found her gear and letters to a prisoner in America. [W] also found the letters. I tried to raise it with Mum, but she said she wouldn’t talk about it”;
i)“[Z] is now sleeping at night. He’s not yelling any more and there’s no tantrums. He was very stressed with mum. She would yell at him”;
j)“[Y] is like me, he’s quiet and polite. If Mum really tried, the relationship for [Y] with her would repair”;
k)“[W] doesn’t want to see Mum”;
l)“we all love Mum”; and
m)“[X] wants to see her on Sundays but not on Wednesdays. [Z] just goes for [X]’s sake”.
[W] told Ms F that:
a)“life with Dad is better. There’s no more fighting. [Z] and [X] are a lot better. [X] seems more energetic and excited”;
b)
“at home, Mum was a completely different person. She yelled a lot, her moods were unpredictable and she yelled at me all the time. If I disagreed, there would be humungous arguments …
I was getting Mum up in the mornings to get the kids ready for school. I’ve always got up before her. Dad would go to work at 5:30am”;
c)“there were happy times, but there was fighting and it was always about what Mum was doing. She would refuse to cook dinner, she’d be home for ages and wouldn’t clean or help us. Then when Dad got home, he would help us and cook dinner as well”;
d)the conflict between the parents was “yelling not physical. Mum reckons Dad has abused her for 21 years. I’ve never seen any of this. I wouldn’t support Dad if he was physically hurting her”;
e)“[Y] has only just started eating again. He’s more talkative now. He’s not as stressed … Dad and [Y] get on really well … [Z] and [X] are a lot better … Mum was very violent, we had to pull her off [Z]”; and
f)“I won’t talk with Mum again. I end up getting so angry … I don’t think Mum should have the children. She should see them, but it should be supervised. She takes [X] off and talks with her.”
[Y] told Ms F:
a)“I’m not stressed any more … the children are sleeping, they’re happy and they’re not crying about going to school”;
b)“Mum always yells and she’s aggressive. She yelled mainly at [Z] and [W] and occasionally at me. She’d yell at us because she had to take the kids late to school because we woke her up … when I was younger she hit me. Dad has never hit us. He has a chat with us and sends us to our room”; and
c)“I don’t feel safe with Mum being with the children because of how she’s treated them in the past … I don’t want to talk to her. She just walks away as if she can’t be bothered. I’m not trying to be mean but there’s nothing I like about her”.
[Z] told Ms F:
a)“with Dad we get proper meals”;
b)“[W] and Dad cook and sometimes [V]”;
c)“it’s fun, it’s very happy. There’s not as much fighting or yelling. When Mum was there, it was usually her against all of us”;
d)his father is “nice and funny and he makes proper meals”;
e)his mother “can be funny at times. She doesn’t make proper meals. Some nights we wouldn’t get dinner, we’d have weet bix”;
f)“we have had some good times [with their mother] but every single picture of her, she’s not smiling. She yells a lot, mainly at [W] and me”;
g)one day, [Z] woke the mother up by jumping around and she punched him in the face;
h)the mother swears “at everyone” and smacks “the mean way”;
i)the mother threw a phone at [Y]’s head and threw a CD at [W];
j)the mother would swear at the father a lot and the father would swear back;
k)the mother would hit the father but the father did not hit the mother; and
l)the mother lied to the police when she said that she was punched in the face every day.
[X] told Ms F:
a)living with her father is “better because he’s making us breakfast, we get to school on time and we’re cleaning up Mum’s stuff”;
b)“he gets us to school on time. We get to hug him and he says good night. Sometimes he doesn’t have time to read a story to me, but he gets up on time”;
c)her mother sometimes hugs her and sometimes says good night;
d)the mother “slept in and we would wake her up in time. But Mum would yell at [Z]. I always got up early’;
e)sometimes the father yells at everyone for fighting at the table but he does not hit;
f)the mother yells “a lot at all of us for not getting up early or fighting … she sometimes swears at all of us and smacks everyone … she hits hard once and sometimes twice”; and
g)[X] would feel happy to live with her father and see her mother on every second Sunday.
Ms F considered that her observations of the father and the five children indicated a close and positive relationship between the father and the children.
Ms F described the atmosphere during her observations of the mother with the children as “anxious”. Ms F noted that [W] and [Y] refused to interact with their mother and sought Ms F’s permission to leave the observation room, which she gave. [Z] later also asked to be able to leave and was given permission by Ms F. The mother did not respond to the three children leaving.
In her report, Ms F included a table of observational ratings concerning such things as parental verbal interaction, parental non-verbal interaction, behaviour and parent-child attachment. A key to the table indicated that zero represented a poor result, five represented a fair result and 10 represented an optimal result. The mother received five scores of 6, five scores of 7 and seven scores of 8, giving her an average score of 7.1. As a comparison, the father received a score of 9 to 10 on all measures, giving him an average score of 9.5.
The husband has the care and control of three children of the relationship who are under 18 years old. He also has the two adult children living with him.
The husband will have to pay rent once the family home is sold. The wife will have the benefit of living rent free with her partner Mr J.
The husband has the commitment of supporting the children. The wife has the commitment of paying a minimal amount of child support. Neither party has any responsibility to support anyone other than their own children.
The husband is in receipt of Centrelink benefits of $580 per week. Otherwise, neither party receives a pension, benefit or allowance.
In all the circumstances of this case, a modest standard of living for each party would be reasonable.
Neither party is seeking spousal maintenance.
There is no issue about creditors recovering their debts.
Neither party has significantly contributed to the present income or earning capacity of the other. Each party has contributed to the property of the other party. Neither party has any financial resources, other than their earning capacity, and, in the case of the wife, her new partner.
The marriage lasted 22 years. It did not adversely affect the earning capacity of either party.
There is a need to protect the father’s role as a parent, given the recent turmoil in the family and the need for some stability to be achieved.
The financial circumstances of the wife’s cohabitation with Mr J, to the extent that they are known, have been previously stated. The husband is not cohabiting with anyone.
The terms of any property order relating to the parties to the marriage is to be determined in this proceeding.
The wife is paying $14 per week in child support.
There is no relevant binding financial agreement.
There are no other relevant facts and circumstances.
Whether it is just and equitable to alter the parties’ property interests
The parties agreed that it would be just and equitable to alter their property interests in this case. In view of paragraph 42 of Stanford, the fact that the parties are no longer living in a marital relationship and the various findings made above in relation to contributions and future needs, I also consider that it would be just and equitable to alter the parties’ property interests in this case.
What order is just and equitable
The parties consented to orders, which were made on an interim basis, that their former family home be sold and the proceeds of sale be placed on trust pending further order. Neither party sought a superannuation splitting order.
The wife sought orders that the husband receive 60% of the parties’ combined assets. The husband sought orders that he receive 80% of the parties’ combined assets.
Taking into account holistically all of the matters previously mentioned, I consider that it is just and equitable that the husband receives 65% of the proceeds of sale of the former family home, that each party retains the assets presently in his or her possession and that they each be responsible for the debts in their respective names. This takes into account the various post-separation contributions and the future needs mentioned above. There will be orders accordingly, along with the usual orders finalising the financial relationship between the parties.
I certify that the preceding five hundred and ninety-one (591) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 5 February 2015
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