Porter & Porter (No 3)
[2024] FedCFamC1F 633
•24 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Porter & Porter (No 3) [2024] FedCFamC1F 633
File number(s): SYC 4014 of 2012 Judgment of: CURRAN J Date of judgment: 24 September 2024 Catchwords: FAMILY LAW – PARENTING – Interim hearing – Where mother sought orders for change of residence – Where the mother sought orders for the child to live with her – Where father sought orders for child to live with and spend time with each parent in accordance with her wishes – Where child is currently living with the father despite orders previously made for child to live with mother – Where mother alleges child is at risk of neglect in father’s care – Where concerns that the child has been self-harming – Consideration of child’s views – Where child expressed wishes for no court orders – Orders made for ongoing therapeutic support for child – Orders made for specific issues report to be expanded to cover issue of child’s schooling – Orders made for the child to live with, spend time with and communicate with each parent in accordance with her wishes Legislation: Family Law Act 1975 (Cth) pt VII, ss 4, 60B, 60CA, 60CC, 61B, 61CA, 61C, 61D, 64B, 69ZL
United Nations Convention on the Rights of the Child (1989)
Cases cited: Banks v Banks (2015) FLC 93-637; [2015] FamCAFC 36
Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Goode & Goode (2006) FLC 93-296; [2006] FamCA 958
Marvel & Marvel (2010) 43 Fam LR 348; [2010] FamCAFC 101
Shamon & Shamon (No 9) [2023] FedCFamC1F 586
Division: Division 1 First Instance Number of paragraphs: 142 Date of hearing: 20 September 2024 Place: Sydney Solicitor for the Applicant: Litigant in person Counsel for the Respondent: Mr Brickwood Solicitor for the Respondent: Gannon Family Law Solicitor for the Independent Children's Lawyer: NLS Law ORDERS
SYC 4014 of 2012 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PORTER
Applicant
AND: MR PORTER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CURRAN J
DATE OF ORDER:
24 SEPTEMBER 2024
BY CONSENT THE COURT ORDERS THAT:
1.Each parent is restrained from the following:
(a)Contacting or communicating with Ms DQ unless requested to do so in writing by Ms DQ.
(b)Contacting or communicating with DR Family Services unless requested by the service to do.
(c)To issue any subpoena to Ms DQ Psychologist or DS Psychologists to give evidence or for the records without leave of the Court.
(d)To show or to discuss any evidence, correspondence, conversations concerning the proceedings orders, reports or information whatsoever about the parenting mattes in the presence or hearing of D.
2.The parents will use their best endeavours to ensure that D participates in and attends the DR Family Services, and attend any appointment arranged.
PENDING FURTHER ORDER THE COURT ORDERS THAT:
3.Orders 3-13 of the orders made by the Honourable Justice Watts dated 6 December 2018 are suspended.
4.The child, D born 2010, shall live with, spend time with and communicate with each parent in accordance with her wishes.
5.The Specific Issues report ordered by the Honourable Justice Boyle on 27 August 2024 be expanded to consider the issue of D’s school attendance, including her views about what school she wishes to attend.
6.The Independent Children’s Lawyer is granted leave to provide a copy of the report of Ms DT dated 20 December 2022 to the child’s treating psychologist, Ms DQ.
7.The application of the mother is otherwise dismissed.
8.The application of the father is otherwise dismissed.
THE COURT NOTES THAT:
A.The parties intend to work with Ms DQ to support D to engage in a return to school program.
B.The parties will use their best endeavours to support D in engaging with any further programs as recommended by Ms DQ to support D in her return to school, or other therapeutic supports as recommended by Ms DQ from time to time.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Porter & Porter has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTCURRAN J:
These reasons for judgment were delivered orally and have been corrected from the transcript.
Consistent with the provisions of s 69ZL of the Family Law Act 1975 (Cth) ("the Act") I set out my reasons in short form.
INTRODUCTION
These are interim parenting proceedings between the applicant mother, Ms Porter, and the respondent father, Mr Porter. The parties have three children: B, born 2006; C, born 2008; and D, born 2010.
Final parenting orders were made by consent regarding B and C on 15 April 2024. Therefore, the remaining dispute between the parties in these proceedings relates to the parenting arrangements of D, who will turn 15 in 2025.
The current parenting arrangements are subject to final parenting orders made by consent on 6 December 2018 by Watts J. These orders set out, inter alia, that the parents are to have equal shared parental responsibility, that D is to live with the mother and spend time with father each alternate weekend from after school on Friday until before school on Monday, and spend time with the father for half of each school holiday period amongst other orders.
Despite these orders, D is presently living with the father and not spending time or communicating with her mother. D moved to live with her father in April 2024 and has not spent any time at all with her since Mother’s Day in May 2024. She has since ceased all communication. The father states that this arrangement is a reflection of the child’s views which have been held since April 2024.
On 27 August 2024, Boyle J set the substantive proceedings down for final hearing before herself commencing on 20 January 2025, and ordered a Specific Issues Report be prepared by a Court Child Expert addressing D’s views and the circumstances in which those views may have come about.
The mother filed this Application in a Proceeding on 27 August 2024.
ORDERS SOUGHT
Applicant mother
The mother sought that Orders 4 and 5 of the final parenting consent orders dated 6 December 2018 be suspended, insofar as they relate to D. These orders are as follows:
4.That the children shall spend time with the father during school term as follows:
4.1.For [C] and [D], each alternate weekend from after school on Friday until before school on Monday, and the father or his nominee is responsible for taking the children to school.
4.2.For [B], each alternate weekend from after school on Friday until after school on Wednesday, and the father or his nominee is responsible for returning [B] to the mother.
4.3.In the event that the father’s weekend falls on a long weekend including a Monday then time shall be extended to 5 pm on Monday and in the event that the father’s weekend falls on a long weekend including a Friday then the father time shall commence at 5 pm on Thursday.
4.4.The alternate weekend time for the children in order 4.1 and 4.2 is to be calculated each calendar year from the first Friday after 1 January, with the first Friday being week 1 and the alternate weekend being week 2.
4.5.That the father’s time with the children in accordance with order 4.1 to 4.3 is to commence when the father provides written confirmation to the mother and the Independent Children’s Lawyer that he has changed the children’s transport arrangements with the relevant schools and/or agencies, and the father’s time with the children is to remain as each alternate weekend from 5pm Friday until 5pm Sunday until compliance with this order.
5.That the children spend time with both parents during school holidays periods as follows:
5.1.With the father for all of the first term (March/April) school holiday period.
5.2.With the father for the first half of the second term (June/July) school holiday period, and with the mother for the second half of the second term (June/July) school holiday period.
5.3.With the mother for all of the third term (September/October) school holiday period.
5.4.With the mother for half of the Christmas school holiday period for the first half of the school holiday period in odd numbered years and the second half in even numbered years.
5.5.With the father for half of the Christmas school holiday period for the first half of the school holiday period in even numbered years and the second half in odd numbered years.
5.6.For the purpose of these orders the school term and Christmas school holidays are deemed to commence at 5pm on the day school term ceases and changeovers shall occur at 5.00pm on the day in the middle of the school holiday period, such period to be the longest period of the school holidays of all of the children.
She sought that the child lives with her and spends time with the father every Sunday from 3.00pm to 6.00pm for a period of three months.
She further sought that the father provides an undertaking that he will not leave D unsupervised with her boyfriend during her time with the father; an undertaking that he will remove her access from any Uber account; and an undertaking that, in the event D leaves school and/or returns to the father’s care, he will contact the mother immediately advising of her whereabouts and arrange for her to be returned to the mother forthwith.
The mother sought restraints on the father, including:
(a)He be restrained from communicating with the child in school hours;
(b)He be restrained from communicating with the school or collecting the child from school or anywhere else on any day that she is in the care of the mother;
(c)He be restrained from causing the child to miss school for any reason; and
(d)He be restrained from denigrating the mother to the child or discussing the court proceeding with the child.
She sought that the single expert, Ms DT, provide an addendum to her single expert report dated 20 December 2022, reinterviewing C and D.
The mother sought costs.
During the interim hearing she abandoned her application and instead sought orders be made in accordance with the orders that were proposed by the ICL in her case outline.
The orders proposed by the ICL became the mother’s application.
Those orders were:
1.The father forthwith is to return [D] born […] 2010 to the care of the mother on a date and place to be advised by the Court.
2. [D] attends [DU School] Commencing Term 3 of 2024.
3.The father’s time pursuant to the Order 4 of 6 December 2018 is suspended until 25 October 2024.
4. Order 4 of 6 December 2018 is to continue during the Term 4 School Holiday
5. [D] is to spend time with the father from 3pm Christmas day (25 December 2024) until 3pm boxing day (26 December 2024) unless otherwise agreed between the parents in writing.
6. The mother within 7 days of these Orders is to make contact with [DV Family Services] and is to do all things and acts to enrol [D] into the [DW Program] with [DV Family Services] and to take her to any schedule appointments and groups that are directed by [DV Family Services] for the [DW Program] or such other program for her age.
7. The mother is to do all acts and things necessary to take [D] to [Ms DQ] psychologists appointments and the father is to pay the costs of all appointments less the Medicare rebate.
8. The mother is to do all acts and things necessary to ensure that [D] participates in and attends [DR Family Services] [in] September 2024 […] and any appointment arranged thereafter.
9. The mother is to ensure that [D] attends school each day or in accordance with any individualised school plan developed by the school that [D] attends.
10. Each parent is restrained and an injunction is hereby granted from the following:
a. Contacting or communicating with [Ms DQ] unless requested to do so in writing with [Ms DQ]
b. Contacting or communicating with [D’s] current school unless requested to do so in writing by the school or in an emergency or to notify the school of an absence or to provide a medical certificate or to sign a consent form or enrolment form or other legal document requested by the school or to develop the individualised learning plan/return to school plan.
c. Contact or communicate with [DR Family Services] unless requested by the service to do so.
d. Communicate with the [DW Program] unless requested to do so by them.
e. To issue any subpoena to [Ms DQ] Psychologist or [DS Psychologists] to give evidence or for the records without leave of the court.
f. To show or to discuss any evidence, correspondence, conversations concerning the proceedings, orders, reports or information whatsoever about the parenting matters in the presence, or hearing of without leave of the Court.
Notation:
A. The Orders of 6 December 2018 provide for [D] to live with the mother.
Respondent father
The father sought the Application in a Proceeding filed by the mother on 27 August 2024 be dismissed.
He sought that, pending further order, Order 2 of the orders dated 6 December 2018 be discharged. This order states:
2.That the mother and the father shall equal shared parental responsibility for [B], born […] 2006, [C], born […] 2008 and D, born […] 2010 (“the children”).
The father further sought that, pending further order, Order 4 of the orders dated 6 December 2018 be amended so that:
The Child [D] live with, spend time and communicate with each parent consistent with her wishes.
He also sought that his costs of and incidental to this application be paid by the mother.
At the interim hearing of the matter, he did not press his application in respect of parental responsibility, stating that it was a matter for final hearing.
Independent Children’s Lawyer
The ICL filed a Case Outline in which she set out her proposed orders, although in oral submissions stated that she was not making an application in those terms but was responding to the mother’s application.
The ICL had recently been appointed and had met with the child D the day prior to the interim hearing. She informed the court that D had expressed a clear wish to remain living with her father. Notwithstanding that view being expressed both to the ICL and to the child’s psychologist, and indeed to the child’s previous ICL, the ICL sought orders contrary to the child’s views.
The proposed orders were as adopted by the mother as set out in [17] above.
The ICL tendered documents in her tender bundle which formed part of the evidence. In addition, she tendered a document prepared by D which indicated her wishes and views. The document which became exhibit 5, was signed by D who requested that it be provided to the court. Her wish was that there be no orders and that she continue to live with her father. I set out the full contents of that document later in these reasons.
The ICL’s position was that, given D’s possible self-harm attempt, her recent increased school refusal, and the other circumstances outlined in evidence and in her submissions, that the court should order that she return to live with her mother, have a period of no contact with her father and then return to spending time with both parents.
MATERIAL RELIED UPON
The mother relied upon the following documents:
(a)Application in a Proceeding filed 27 August 2024;
(b)Her affidavit filed 27 August 2024;
(c)Her affidavit filed 19 September 2024;
(d)Case Outline Document filed 19 September 2024;
(e)Single Expert Report of Ms DT dated 20 December 2022; and
(f)Case Outline Document of the ICL filed 20 September 2024.
The father relied upon the following documents:
(a)Response to Application in a Proceeding filed 19 September 2024;
(b)His affidavit filed 19 September 2024; and
(c)Case Outline Document filed 20 September 2024.
The Independent Children’s Lawyer relied upon the following documents:
(a)Case Outline Document filed 20 September 2024;
(b)The Single Expert Report of Ms DT dated 20 December 2022;
(c)The report of D’s psychologist Ms DQ dated 19 September 2024;
(d)The ICL Tender bundle (accepted into evidence); and
(e)Letter of wishes signed by D dated 19 September 2024.
THE LAW
These interim parenting proceedings are dealt with under Part VII of the Act. Orders in respect of children are informed by Pt VII of the Act, and the meaning of a parenting order is defined at s 64B.
Parental Responsibility
Parental responsibility is defined at s 61B of the Act. Each parent, according to s 61C of the Act has parental responsibility for the child, and the parents are encouraged, where it is safe to do so to consult each other about major long-term issues in relation to the child having regard to the child's best interests pursuant to s 61CA.
The Court has the power to make parenting orders that allocate the responsibility for decision making jointly or solely in relation to all or specified major long-term issues under s 61D(3).
The term "major long-term issues" is defined at s 4(1) of the Act as:
in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child's education (both current and future); and
(b) the child's religious and cultural upbringing; and
(c) the child's health; and
(d) the child's name; and
(e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
Parenting Order
Section 60CA of the Act provides that the Court is to regard the best interests of the child as the paramount consideration. Section 60B of the Act outlines the objects and principles under Pt VII being to ensure that the best interests of children are met, including by ensuring their safety, and to give effect to the Convention on the Rights of the Child ("CROC").
Section 60CC specifies the criteria that the Court must consider in determining the orders that are to be made in the best interests of a child, those being:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i)the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
The court must, pursuant to s 60CC(2A) have consideration to any history of family violence, abuse, or neglect involving the child or a person caring for the child, and any family violence order that applies or has applied to the child or a member of the child's family.
Interim proceedings
This is an interim hearing and there has been no cross-examination or testing of the evidence. By virtue of that fact, I am cautious in my approach to making findings in relation to disputed facts.
The procedure for conducting an interim hearing has been established by the Full Court in the often-cited case Goode & Goode (2006) FLC 93-296 (“Goode & Goode”). It is an abridged process where the scope of enquiry is curtailed. The Full Court at [81]-[82] set out the procedure to be following in an interim hearing:
81.In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
The Court should take a conservative approach in interlocutory matters, and that includes applying caution in making findings of fact (see Marvel & Marvel (2010) 43 Fam LR 348 (“Marvel”)).
The fact that findings may not be possible in an interlocutory parenting matter, does not mean evidence raising questions of risk ought to be dismissed because no finding is yet available (Shamon & Shamon (No 9) [2023] FedCFamC1F 586). In Marvel (cited with approval by the Full Court in Eaby & Speelman (2015) FLC 93-654), their Honours observed at [122]-[123]:
122.In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
[88]In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge's intuition may suggest that the finding will be borne out after a full testing of the evidence.
123. Later, at [100] their Honours amplified their comments and said:
[100]The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
In Banks v Banks (2015) FLC 93-637 the Full Court confirmed that given evidence was uncontested, only a limited consideration may be given to the relevant factors. Interim disputes should determine only matter that are necessarily addressed prior to a full determination final trial.
Serious allegations cannot be ignored at an interim proceeding just because they have been put in issue. In an interim proceeding, possibilities of unacceptable risk of harm are a legitimate basis for assessing risk, as long as there is a proper basis for assessing these possibilities.
ISSUES IN DISPUTE
The mother contends that there are serious risk issues to D if she continues to live with her father by reason of what she has described as her self-harm attempts, her school refusal, her not living with her brothers, and the risk to her safety by reason of the damage to her relationship with her mother arising from her continuing not to spend time with her.
The father identified the following issues in dispute in his Case Outline Document filed 20 September 2024:
1. Whether or not the Final Parenting Orders made on 6 December 2018 ought to be amended, and if so, if the Court ought to consider whether any Orders are appropriate for [D], who is 14 years […] of age?
2. Whether or not it is in [D’s] best interest to disrupt her current living arrangements so that she resides with the Mother, and spend limited time with the Father?
3. Per [2], does the Father pose an immediate unacceptable risk of harm to [D], such that urgent orders are to issue for [D] to be removed from his care?
4. What are [D’s] wishes?
5. Costs.
The ICL identified the issues in dispute as being the live with and spend time with arrangements; whether D is at an unacceptable risk; her current safety and whether her psychological and educational needs are being met; the schooling and educational arrangements for D; the decision making for D; and the therapeutic arrangements for D. She also identified that the findings of Dr DX, psychiatrist, in a report prepared for the HCCC dated June 2022 raised substance use disorder, ADHD, and the father’s lack of insight in respect of the same, which exposes D to safety issues which are unacceptable.
PARENTAL RESPONSIBILITY
The father's application initially sought that the existing order for parental responsibility be discharged, however, in oral submissions counsel for the father did not press such an order. The mother, adopting the ICL's minute of orders, did not seek any order to change the existing orders for parental responsibility.
The ICL made submissions in support of an order for D to be enrolled in DU School. That order had been adopted by the mother. In oral submissions the mother said D was not in that catchment area for DU School. I had no evidence before me of any sort about DU School. The ICL made submissions that D should be attending school. The father contended that if she was unable to attend school she could engage in online learning as an interim measure.
Both parents indicated by submission that they wished D to return to her current private school and that they intended to liaise with the school about a return to school plan. This proposal was supported by the ICL who contended that a mediation or meeting between the parents and the school should occur. I simply note that intention and do not propose to make any order in respect of the engagement with D's current school. The only evidence I have is the letter from the school dated September 2024 confirming her withdrawal from the school effective immediately, recognising the importance of her spending time prioritising her mental health, and noting that she would be welcomed in the future when she is feeling well and able to return to school.
From the bar table, the ICL advised D did not wish to return to her current school but there was no evidence as to what school or what return to school plan was proposed. The ICL also submitted that the court should order D to attend school due to her current school refusal.
There was no evidence as to the likely impact on D if she was ordered by me to attend school or to attend any particular school. The only evidence I have is that strategies were recently discussed with the school to discuss a return to school plan with the assistance of Ms DQ, D’s psychologist, and that the proposal for her to attend every day created too much pressure on D, that she became more anxious, and experienced more panic attacks. Given the father's evidence as to D’s anxiety and panic attacks, as corroborated by the report of Ms DQ, and the absence of evidence as to D's wishes as to which school to attend, I am not satisfied that such an order should be made on an interim basis nor am I satisfied that such an order is in D’s best interests.
Given the indication that both parents wished to engage with D's current school and her psychologist about a return to school plan, I decline to make any order in respect of D's school on an interim basis. I note that this may become an issue for determination at final hearing. I will order the inclusion of the issue of D's wishes about school in the specific issues report that has been ordered by Boyle J and is being undertaken in November 2024.
Accordingly, I decline to make an interim order changing the existing order in respect of parental responsibility. This will remain a matter for final determination if the parents are unable to reach agreement otherwise.
SECTION 60CC FACTORS
As referred to above, the court is mandated to take into account the factors in s 60CC(2) in determining what is in the best interests of a child. These factors must be considered only to the extent that they require determination prior to a proper testing of the evidence at final trial.
s 60CC(2)(a) – What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the child and each person who has care of the child?
Does the father pose a risk to D’s safety by reason of neglect in the father’s care?
The mother contended that D’s safety was at risk if she remained living with the father as she has since she self-placed there in April 2024.
The mother contends that D’s school attendance deteriorated when she began living with the father; that D is not being properly supervised; and that there is a general lack of parental supervision and excessive freedoms which are age inappropriate which is a risk to D’s safety. She said that this is illustrated by behaviour such as providing D unlimited access to Ubers to spend time with her boyfriend rather than attending school. The mother also contends that the father has manipulated and influenced D and that events have evolved and happened in “lockstep with the father’s civil and criminal proceedings.”
There is no doubt D’s school refusal has reached a crisis point where she is currently not attending school, her academic results have declined from consistent grades and attendance in 2023, and there have been some allegations of unsatisfactory behaviour at school. The mother contends that her lack of engagement with the structure and supports from school, her loss of friendship groups, social and other supports that follow from her dis-engagement with school and her routine, are important safety considerations. She seeks a finding that the rapid decline is both in the father’s care and as a consequence of being in the father’s care. She contends that her attendance records are as a consequence of the father manipulating both D and the school into believing that she is unwell.
The mother says D has not spoken to her by telephone in more than 19 weeks due to the father’s manipulation. In support of this contention, she says that the evidence from Dr DX of June 2022 supports the finding she seeks; that I find that the behaviour of D is a consequence of the father’s manipulation of her. She says the court should find that the father is exploitative and manipulative and that the conduct in some way connected to his current HCCC and NCAT proceedings. The mother also contended that D is “learning to be devious, manipulative, defiant and deceitful” due to being exposed to her father’s traits.
The mother contends these finding can be made, however, the evidence in this interim hearing does not permit me to make the findings sought of a connection between the father’s conduct and influence and D’s change in behaviour.
The mother gave evidence of D’s sharp academic and behavioural decline. There is indeed a stark contrast from the reported academic reports from 2023 to 2024. The mother says that this is as a consequence of her father’s failure to engage, supervise, set boundaries and provide supervision as well as his manipulation and deliberate conduct and influence.
The mother alleges that the father has been showing D private communications between parents (such as the email about the time D is spending with her boyfriend) and that he sends text messages denigrating the mother and referencing court proceedings in his text messages with D.
Some of the text messages between the father and D, annexed to the mother’s affidavit, contain concerning comments made by the father. Frankly, they show a lack of insight in relation to the impact of involving D in the acrimony that has continued for almost all of her life. However, other messages the mother relied on show some level of conflict between D and her mother. The mother contends that there was “normal discord” between she and D, but the decision of D to cut her mother off is as a consequence of the father and his influence on D.
The cause of the shift in D is simply not able to be determined on the evidence that has been presented. It may be that the mother is correct in her beliefs, and it is the father’s influence. Equally, it may be that there are other reasons for the changes in D’s behaviour, academic results, friendship groups and communication with her mother. It is simply not possible to make a finding on the evidence as to the cause of the behavioural changes. This is a matter that will require the evidence to be tested and findings made at final hearing.
The evidence as it stands does not support a finding that the current circumstances are such that D should be immediately removed from the father’s care as proposed. Indeed, and importantly, D self-placed with the father around April 2024. To enforce a change in her desired living arrangements on the basis of the mother’s speculation and belief that the father is the cause of the changes is without evidence.
Has D been self-harming and what safety issues arise following her consumption of excessive tablets on two occasions?
The mother raises concerns as to D’s mental health following her hospital admission in late 2024 whilst in the father’s care due to her consumption of tablets which the mother considered to be a self-harm attempt.
The facts are that in late 2024, on two occasions, D ingested more tablets than the prescribed dose. On the second occasion, the father took her to DY Hospital.
The mother asked for this matter to be listed urgently following the events of late 2024 which she said was a self-harm attempt. The mother gave evidence that she was kept in the dark by the father as to the events, but that a mother of one of D’s friends contacted the mother expressing concern over a comment D had posted that day to TikTok, where D posted “GOODBYE.”
D denied it was a self-harm attempt. She discussed the events with her psychologist Ms DQ and subsequently entered into a safety plan which includes ongoing weekly psychology follow up and removing access to medications.
The father’s evidence was that he was not certain how many tablets she had ingested and assumed due to her vague response it could have been more, although she told him it was nine in response to a panic attack and anxiety she was suffering. He says the blood tests showed that the medication level was “7” and this was consistent with her taking nine tablets, not the greater number he initially feared.
I do not have any expert evidence as to what the significance of “level 7” is, as reported in the hospital discharge summary. However, I have the benefit of the summary which says “[Medication] level was 7 and ALT was 26 – NAC was ceased and she was cleared from a toxicology perspective.” I infer the words “she was cleared from a toxicology perspective”, read together with the reported levels, support the father’s evidence that the consumption was not as high as he had initially feared.
I accept the father’s evidence that he was not certain of the number of tablets she had ingested and was reporting the higher number for that reason. He explained that both to Ms DQ and in his affidavit.
The father submits that he has facilitated D attending upon medical professionals and psychologists for treatment of her psychological issues both prior to and since this incident.
It is difficult to know whether D’s consumption of tablets was a self-harm attempt as believed by the mother. Concerningly, this is the second time she has ingested a higher than prescribed dose of tablets. The first occasion was recorded by Ms DQ in their session in late 2024, where D said she had a panic attack which she “treated with [tablets].” It was recorded that they “discussed better coping strategies and risk, which D disclosed she would use alternate strategies including deep breathing.” It was only two days after that discussion that she ingested the suspected nine tablets that caused her to be hospitalised. That conduct, given alternative strategies had been discussed, is very concerning and causes me very carefully to consider whether the proposed change of residence on an interim basis is necessary to ensure D’s safety.
Ms DQ discussed the seriousness of her conduct and the possible consequences with D and agreed to and set up with D a detailed safety plan which has been implemented. The safety plan includes a weekly session with Ms DQ and that all medication has been removed from her access at home and was detailed with triggers, symptoms and strategies. It was signed by D. D remained adamant to Ms DQ that she did not try to self-harm.
Each of the factors of the ongoing counselling, the signed safety plan and the removal of access to medication, goes some way, in my mind, to ameliorate what is obviously a series of concerning events.
Ms DQ’s report did not recommend any further changes for D but said her goal was to provide D with a safe environment. She is an expert and is a mandatory reporter who will continue to see D on a weekly basis. This is a very finely balanced situation, however, the amelioration through the safety plan, together with giving weight to D’s current wishes, on balance, persuades me that D’s safety is not so at risk that her residence should be changed, against her wishes as discussed below.
Allegations of risk made by the father
The father contends that if D was forced to live with or spend time with her mother, against her views, she will likely run away from both parents, and be placed at risk of harm. There was no evidence that I was taken to that D had threatened to run away.
He further submits that to physically force D to live or spend time with the mother against her views would highly likely be detrimental to D’s mental health. This concern is one that I consider on the evidence to be a relevant factor given her recent vulnerabilities and expressed wishes as I detail below.
s 60CC(2)(b) – Any views expressed by the child
The next factor I am mandated to take into consideration are the views expressed by D.
In Bondelmonte v Bondelmonte (2017) 259 CLR 662, the High Court stated:
35.... whilst a child’s views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child’s age or maturity and level of understanding of what is involved in the choice they have expressed.
The child’s age is relevant in determining the amount of weight to be attributed to their views. In this case, D is 14 years and nine months of age. She has clearly expressed her views and continues to do so. During the periods of her increasing school refusal and her experiences of panic attacks and anxiety, she has steadfastly maintained her views about where she currently wants to live. She expressed them with clarity to the previous ICL, she has expressed them again to the current ICL, she has told her psychologist, and she wrote and signed a letter setting out her views which she asked the ICL to provide to the Court. I give her views significant weight for following reasons.
The father contends that D in April 2024 told him words to the effect of “I just need a break from Mum. I just need a break from living with her.” He deposes that he was not certain how long she “needed a break” from the mother, but that recently she has told him words to the effect of “I want to live with you dad. I have wanted to live with you since February but did not know how to tell mum.”
The father states that he has encouraged D to spend time with and communicate with the mother but that she has responded with words to the effect of “No. I am not ready to see her or speak with her yet”. It is not in dispute that she did spend time with her mother on Mother’s Day. The father said he encouraged her to do so.
The father said he does not oppose D spending time with her mother, however, states that it should be in accordance with her wishes and believes that she should not be pressured at this time due to her mental health vulnerabilities.
The mother contends that D’s views reflect the father’s words and opinions, and that he has manipulated her. By example, she states that D as her first wish wrote “No orders”, and contends this reflected that sentiment expressed by the father to Brasch J on the last court attendance in April 2024. She does not accept these are D’s views and wishes, and the mother is steadfast in her belief that D has been influenced and controlled by the father.
On 28 June 2024, the former ICL Mr DZ attended a Zoom conference with D. On that day, Mr DZ sent email correspondence to the mother and the father’s legal representatives that stated:
Dear Colleague and [Ms Porter]
I confirm that I had a zoom conference with [D] this afternoon. [D] has requested that I advise her parents as follows:
1.[D] would like to make her own decisions as to with which parent she lives and spends time with. She does not want court orders.
2.[D] would like to change schools and to attend [EA School].
3.[D] does not want to move or to attend a school in [City EB].
4.[D] is of the view that there is no point in continuing the court proceedings. She feels that she is at an age where she can make up her own mind.
I advise that following my conference with [D] I am hopeful that she will reconnect with her mother soon. However, the continuation of the court proceedings are not helpful.
Yours Faithfully
[Mr DZ]
On five occasions D met with her psychologist Ms DQ, who prepared a report for the interim proceeding. In her report she did not record D’s views, but the ICL advised the court that the document of wishes prepared for the court was prepared by D when she was with Ms DQ. Ms DQ did not express an opinion as to which parent D should reside with, but noted in the safety plan one of her triggers was feeling pressured to live at both mother’s and father’s house.
On 19 September 2024, D met with the ICL and expressed that she wished to live with her father. She told the ICL she loves her mother. This expression of her love for her mother certainly indicates against a finding that the father is influencing D as does his encouragement for her to spend time with her mother as he did on Mother’s Day. There is significant other independent evidence that D has previously had a very close and loving relationship with her mother and that she values the relationship with her mother as suggested by the ICL. Evidence provided by the mother, such as the birthday letter D wrote her mother in 2023, her expression of “love you more” in the text message she sent to her mother, and that she included both her father and mother on her emergency contact list for the safety plan she completed in September 2024, all support the finding that D does love her mother.
On 19 September 2024, D met with the ICL and signed the document that set out what she wanted. She was clear in expressing that she currently wants to live with her father.
D’s expressed wishes stand in clear contrast to the wishes D expressed during her interview with Ms DT in November 2022, almost two years ago. While it is acknowledged that D is now almost two years older since sharing those wishes, her current struggles with anxiety, panic attacks, and mental health issues, along with potential concerns about the influence of her father on her wishes, suggest that caution should be exercised in determining how much weight should be given to the wishes she is now expressing.
Ms DT opined that as of her report dated December 2022, D “does not appear emotionally triangulated in the parental dispute. [D] is aligned in her relationship with [the mother] in the quality of their relationship that she experiences as secure and to be able to spend time with her mother and talk with her about important or everyday topics.” She also then reported that D gave “keeping arrangements as they were” a score of 9/10 and “living mainly with Dad” a score 0/10.
However, the father had reported to Ms DT that D was then telling him she wanted to spend more time with him and that she reported that D had told him that “Mum told her not to ask for extra time with him.” The mother reported to Ms DT at that time that she:
… thinks the parenting arrangements suit [D] and that [D] would probably not want the arrangements to change. However, she said she is unsure exactly what [D] may think about this. [the mother] said that [D] loves [the father] very much and loves spending time with him in the current arrangements and how things are going presently.
It is the mother’s case that the father is putting pressure on D in the same way she says he did with C as she reported in 2022, that is, the father had influenced C to reject the mother.
Whilst I acknowledge the significant shift in the expression of views and wishes of D, I am not satisfied that her views should be overridden as proposed by both the mother and the ICL. I am mindful that the earlier observations and interviews were when D was two years younger. I am mindful that she has maintained her views to two separate ICL’s and her psychologist and has, in essence, voted with her feet by remaining with her father since April 2024, a period of almost six months. I am also very mindful that there is a final trial set for four days in January 2025.
The Honourable Justice Boyle made orders on 27 August 2024 for a Specific Issues Report to be prepared by a Court Child Expert addressing D’s views and the circumstances in which those views may have come about. The interview process is set down with the Court Child Expert on 18 November 2024.
It is not possible to find, or even infer, on the evidence before me, that the change of expressed views from late-2022 to her now very strongly held views about wishing to live with her father, is as a consequence of the father’s influence on D to reject her mother. There could be any number of factors influencing D’s expression of her views.
While it is concerning to me that the father has, in breach of a restraint, discussed the court matters with D, without any further evidence, I am not satisfied that the finding sought by the mother that D’s views are subject to the influence of the father is open, at least not on an interim basis.
Despite her school refusal and her anxiety and panic attacks, D has maintained with significant clarity her desire to live with and spend time with her parents in accordance with her wishes.
I accept that her consumption of the tablets on two occasions, the latest occasion leading to her hospitalisation, is a significant concern. However, there is no evidence that satisfies me that making orders contrary to the long held and clearly expressed wish of this, almost 15-year-old child, would do anything other than increase her distress and anxiety. My concern is that such an order, on an interim basis without fully testing the evidence, would likely increase her distress and anxiety. This is not in her best interests.
Given the clarity of her expressed views and wishes, the period over which she has expressed them, that she has expressed her views to both ICL’s appointed in this matter, that she has expressed those views to me in writing, that she has acted on her desire to live with her father, and that she was recorded in 2022 as being an articulate, polite, co-operative and thoughtful child, I must give her views significant weight.
s 60CC(2)(c) – The developmental, psychological, emotional and cultural needs of the children
The mother also raised a number of risks to D’s developmental, psychological, emotional and cultural wellbeing. In addition to the issues of her physical safety that I have addressed above, she contended that she was being manipulated by the father; her educational needs were not being met due to his failure to ensure her school attendance and permitting her to spend time unsupervised away from school with her boyfriend. She also raised his influence and its damage to the relationship of D with her brothers. She gave the example of D not attending her brother’s 18th birthday as illustrative of her father’s influence on her.
Final Orders were made by consent in Chambers by Brasch J that B and C live with, spend time with and communicate with each parent consistent with their respective wishes. That order was made on 15 April 2024.
Both B and C are spending time with their father. I was informed from the bar table that B spends approximately five days each fortnight and C alternate weekends when he is not away with school. This was an agreed position. D spends time with her brothers during times they are staying with their father. The mother’s allegation of damage to the sibling relationship is not made out on the evidence at the present time and accordingly this is not a factor that persuades me on an interim basis, that supports the interim orders being made as sought by the mother.
The fact that D is not seeing her mother and has not now seen her for 19 weeks now is, however, of significant concern, given her previous close relationship with her mother. However, this is finely balanced. To make such drastic orders contrary to D’s wishes when a final trial is so close is not in my view supported on the evidence nor is in D’s best interests. The distress it could cause would be in my view likely to exacerbate the mental health challenges that D is currently navigating with the assistance of Ms DQ.
Given the final hearing is only four months away from now, the issues in contest can be properly tested rather than an interim determination being made on limited untested evidence.
The mother is firmly of the belief, due to the timing of D’s mental health decline coinciding with her residence with the father that he is either the cause of her poor mental health by pressure or by neglect or he is simply not addressing appropriately her needs. Her contentions that the father is in effect the cause of the manipulation or neglect, or a combination, is not made out on the evidence.
The report of Ms DQ dated September 2024 sets out the background and history of her engagement with D.
Ms DQ identifies that she has had five sessions with D following a referral following of “developmental trauma with her having lots of panic attacks at school.” She identified that D was suffering from both anxiety and panic attacks, that she had a complex home life due to the “shared custody arrangements” and that she privately requested at this first session that her mother not receive updates. The part of the session where she requested her mother was not informed was attended by D alone.
It was noted that during the subsequent sessions her father attended a number of the sessions. During the session in early September 2024 where the father was present, he discussed the family court situation in front of D. Although it was noted when redirected he was able to then discuss D and her current mental health issues, the father’s conduct in discussing the ongoing conflict arising from the court proceedings is troubling. Firstly, because it shows very little insight into the impact and stress this must be causing D who said “she is aware of the information currently being discussed about family court”, and secondly, because it was in breach of an order made by Boyle J on 27 August 2024 prohibiting precisely that conduct.
On 16 September 2024, D’s father disclosed to Ms DQ that D had been admitted to DY Hospital after an overdose of tablets as referred to above. Ms DQ was concerned with the discrepancy between the report that she took nine tablets and the discharge report that reported she had taken 16-20 tablets.
As discussed, I am unable to make any finding in relation to the discharge report or what “7” means. I accept the father is a professional, however, I have no independent evidence. However, as I have said earlier, D now has the support of a mental health professional on a weekly basis, wishes to engage in the recommended program commencing the Monday this week following the interim hearing, has prepared and entered into the safety plan which provided strategies for managing her responses to stressors, and her father has been requested to ensure all medication be removed from her access at home. Finally, D was adamant that she did not try self-harm nor does she, she says, have thoughts of self-harm.
Ms DQ recommended that future sessions be conducted with D alone to maintain the integrity of the therapeutic relationship and have both parents separated from her therapeutic sessions. She recommended that such occur in order to protect her privacy, as she has expressed concern about her session notes being subpoenaed. This concern was also expressed in the wishes letter of “2 No subpoena of personal record” and a desire to communicate through the ICL. The parents consented to an order to put into effect that recommendation.
Given this opinion, it is important that the therapeutic relationship be preserved and that the sessions and records are private as between D and Ms DQ. The parties were in agreement about a restraint on them being able to subpoena the records of Ms DQ, or of the practice in which she works, and I make this order by consent as recommended by Ms DQ as it is in D’s best interests.
s 60CC(2)(d) – The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs
Both parents appear on the evidence before me to have some limitations in their capacity to provide for D’s needs. This is starkly illustrated by the fact that in the face of the distress of their daughter and her desire to end the proceedings, they remain after 12 years still embroiled in litigation over her. It is extraordinary that, in the face of such distress by D, the parties cannot agree and put D’s needs ahead of their conflict. This child has been the subject of litigation for almost her whole life.
The father may have insight deficits and, in 2022 at least, was diagnosed as having substance use disorder. This is yet to be tested at the final hearing.
The mother is reported by Dr EE, her GP, to demonstrate “symptoms of PTSD, manifesting tearyness, hypervigilance and cognitive dysfunction in the setting of ongoing court matters.” Whether her symptoms impact her capacity to provide for D’s needs is also likely to be tested at final hearing.
On the evidence available each parent, as I say, has some limitation in their capacity to be mindful of and provide for D but as this is an interim hearing that evidence has not been fulsomely tested and I can make no findings.
Each parent is described Ms DT in her 2022 report as having positive features and D described enjoying her relationship with each of them. I infer that when they are not embroiled in conflict with each other, that D derives benefit from her relationship with each of them.
The mother contends that the father has failed to get the child to school over two school terms. The school records were received into evidence. D has had a large number of absences in her school records. Some absences are recorded from the beginning of 2024, when she was living with her mother, although her school refusal has increased steadily throughout the year, since living with her father, to the point where she is now not attending school.
School refusal for such a young child at a critical time in her learning is obviously a significant issue of impacting D’s educational opportunities. However, the cause of the school refusal is not clear at least on the evidence filed and has not been tested. I am simply, on the evidence, unable to make any finding as to the reason for her school refusal. The only evidence is that she suffers from anxiety and panic attacks around school attendance as she herself reported to Ms DQ.
The father’s said that since April 2024, D has suffered from increasing anxiety and mental health issues causing him to engage with the school, the school counsellors and private psychologists. His evidence is that he has taken appropriate steps to support D and assist her to address her developing issues. He gives evidence that D has described her crippling anxiety as the reason she cannot attend school, and that he has been in contact with the school and seeking psychological help for D. He said he has tried to support her attending school and gave evidence around the steps he has taken in this regard. He said he was actively seeking support D’s school refusal behaviour and anxiety through the assistance of her therapists. Ms DQ’s recommendation is for weekly engagement and for D to engage in various programs. The father’s evidence is supported by events such as the meetings with the school and arranging the referral and appointments with Ms DQ.
The ICL sought an order that D be enrolled in and attend DU School Commencing Term 3 of 2024. The parents are in agreement for D to return to her previous school, Private School 1. However, D has expressed to the ICL that she does not wish to return to the school. In September 2024 a letter was sent by the school terminating her enrolment.
In D’s wishes letter she sought that “no parent involvement in school boards/committee.” I do not know where that comes from, nor did anyone make any submissions on it.
In oral submissions it was an agreed position that the school may be open to D returning to the school on a return to school plan. The parties proposed to engage with the school about those options. Given the lack of evidence supporting an order compelling school attendance or a lack of evidence supporting an order to be made for a change of school enrolment, I will make no such order. I simply note the intention of the parties to engage with the appropriate supports in assisting D to return to school. To that end I note Ms DQ’s evidence about working with D to manage her return to school if it is possible.
Despite the limitations of each parent, as referred to above, both have engaged in supporting D to continue to engage with Ms DQ and both have agreed to use their best endeavours to ensure D’s attendance occurs at any programs recommended by Ms DQ. Both parents should be commended for reaching agreement about seeking the supports that are so important to D at the present time.
I am satisfied that the orders for her ongoing therapeutic supports are in her best interest. I make the orders sought by consent.
s 60CC(2)(e) – The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so
The single expert report dated 20 December 2022 at [80] states:
The coparenting relationship comes after the marriage that both [Mr Porter] and [Ms Porter] describe as highly unsatisfactory, lacking in trust, and in which they both experienced the other as distorting the narrative of their relationship, challenging the facts and their perceptions (colloquially known as gaslighting).
The single expert stated at [80] that the parents’ level of acrimony and their wrangling about children’s arrangements over many years is a separated family context that is likely to have impacted the children.
In December 2022, the single expert reported at [81] that “[t]he children will benefit from [the parents] finally arriving at a resolution of the parenting arrangements.”
Nearly two years later they continue to be in high conflict and in opposition where both seek urgent interim orders and final orders in respect of D’s living arrangements. This is despite her being in a high level of crisis in respect of her school attendance, her mental health and her clearly stated wishes, as set out in exhibit 5. Her letter on 19 September 2024 to me said:
1. No order
2. No subpoenas of person record/communicate with ICL
3. Only one signature required for school
4. Live with Dad – see Mum on own accord
5. Mum cant prevent me from leaving country
6. No parent involvement in school board/committee.
The history is clear that D has had a positive relationship with each of her parents prior to 2024, where her relationship with her mother has rapidly deteriorated. There is no basis upon which I can make any finding as to the cause of the deterioration, but as referred to above, I note her previously close relationship with both her parents.
s 60CC(2)(f) – Anything else that is relevant to the particular circumstances of the child
There is extremely high conflict between the parties is a factor that is relevant to this interim determination. Given so much is in dispute and remains in dispute it is not possible to make findings.
The safety plan following D’s hospitalisation is now in evidence and is worth turning attention to. The triggers identified by her as recorded in the plan are:
1. Triggers
•Family court conflict; Developmental trauma from 12 years of ongoing conflict with parents being in family court. Feeling pressured to live at both mother and father’s house.
•Mum’s invading privacy: hacked emails, check receipts for Uber saying he bribes her, reads messages, and sends to self.
•People questioning honesty: “come back and tell me the truth”, lies to protect myself from conflict to avoid
•School refusal; anxiety and panic attacks experienced when feeling pressured to attend [Private School 1]
•Friend conflict; feeling betrayed and let down by close friends sharing personal information with family
•Relationship conflict; concerns about reputation with misinformation being shared amongst peers
The developmental trauma from 12 years of ongoing conflict with her parents being in family court and her identification that she feels pressured to live at both mother and father’s home is illuminating. D also records a sense of invasion of privacy, and she identifies this is another one of her trigger points.
The issues of risk arising from the allegations each level at the other is something that can only be resolved once the final hearing occurs and there is a proper testing of the evidence in dispute.
WHAT ARRANGEMENTS ARE IN THE CHILD’S BEST INTEREST ON AN INTERIM BASIS?
I consider that the risk factors identified are serious and are of concern. I do not know why D has chosen to disengage from school and has withdrawn from what was previously a close relationship with her mother. I do not know what was in her mind at the time of the tablet overdose. The evidence is not such, however, that I am satisfied on the balance of probabilities that the mother’s contentions that the father is the cause by deliberate influence or otherwise of D’s behavioural changes that have been observed.
I am satisfied that D is troubled and in need of the ongoing safety plan and the support measures that have been put in place. The parties to their credit have agreed to D’s therapeutic relationship being preserved and have agreed to be restrained from accessing her therapeutic notes with Ms DQ.
It is far from ideal for D to currently have no relationship with her mother. However, to make orders as sought by the mother for D to live with her and have a period of no time with the father, contrary to D’s clearly expressed views given her age, her maturity, her intellect, her current vulnerabilities, when a trial is imminent would, in my view, likely be very upsetting for D. There is a prospect that their relationships may with therapeutic assistance be restored, hopefully, on a permanent basis with professional assistance given it was previously so close and loving.
I give most weight, however, to D’s wishes for the reasons set out. She will be 15 in 2025, she has held her views for some time now, she has expressed them consistently to a number of people: to two ICLs, to her psychologist and by way of the letter that she forwarded to the court. Her view and the circumstances in which those views may have come about will be fully considered in the Specific Issues Report that is to occur in November 2024 by an appropriately qualified expert who can provide the opinion sought based on their training and experience.
For these reasons I suspend the existing orders, and order that until further order D will live with, spend time with and communicate with her parents in accordance with her wishes.
I order that the report of Ms DT is to be made available to Ms DQ as requested because it provides the background of the prior relationship as between D and each of her parents. This is despite the mother’s objection, but I am satisfied that such background information may assist the therapeutic relationship for D.
I order that the Specific Issues report ordered by Boyle J on 27 August 2024 should be expanded to consider the issue of D’s school attendance including her views about what school she wishes to attend.
I certify that the preceding one hundred and forty-two (142) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Curran. Associate:
Dated: 14 November 2024
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