RICE & RICE
[2019] FCCA 117
•31 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RICE & RICE | [2019] FCCA 117 |
| Catchwords: FAMILY LAW – Parenting and Property – allegations of family violence – financial non-disclosure. |
| Legislation: Family Law Act 1975, ss.60CA, 60B, 60CC, 61DA, 65AA, 60CG, 74, 79 |
| Cases cited: Bevan & Bevan [2014] FamCAFC 19 Chapman & Chapman [2014] FamCAFC 91 Goode & Goode (2007) 36 Fam LR 422 In the Marriage of Briese (1985) 10 Fam LR 642 Livesey & Jekins [1985] 1 All ER 106 Mazorski & Albright [2007] FamCA 520 McCall & Clark [2009] FamCAFC 92 MRR & GR [2010] HCA 4 Oriolo v Oriolo (1985) 10 Fam LR 665 Russell & Russell (1999) FLC92-877 Salah & Salah [2016] FamCAFC 100 Scott & Danton [2014] FamCAFC 203 Slater & Light [2011] FamCAFC 1 Stanford & Stanford [2012] HCA 52 Teal & Teal [2010] FamCAFC 120 Weir & Weir (1993) FLC 92-338 |
| Applicant: | MS RICE |
| Respondent: | MR RICE |
| File Number: | PAC 6086 of 2014 |
| Judgment of: | Judge Obradovic |
| Hearing dates: | 31 July 2017, 1 – 2 August 2017, 8 November 2017 |
| Date of Last Submission: | 8 January 2018 |
| Delivered at: | Parramatta |
| Delivered on: | 31 January 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Shearman |
| Solicitors for the Applicant: | Hogg & Associates Lawyers |
| Counsel for the Respondent: | Mr O'Brien |
| Solicitors for the Respondent: | Aitken Lawyers |
| Counsel for the Independent Children's Lawyer: | Ms Conte-Mills |
| Solicitors for the Independent Children's Lawyer: | Dignan & Hanrahan Solicitors and Attorneys |
PARENTING
All previous parenting orders in relation to the children [X] born … 2002 and [Y] born … 2006 are discharged.
The Applicant shall have sole parental responsibility for the children, provided that when exercising this responsibility she has notified the Respondent in writing of any decision she intends to make.
The children [X] and [Y] shall live with the Applicant.
The child [X] shall spend time with the Respondent in accordance with his own wishes.
The child [Y] shall spend time with the Respondent as follows:
(a)Each alternate weekend from after school Friday (or 3pm) until before school Monday (or 9am) during school terms, commencing on 1 February 2019;
(b)Each Wednesday from after school (or 3pm) until 8pm during school terms;
(c)Commencing at the end of Term 1 2019, for half of each school holiday period as follows:
(i)For the second half in even numbered years, from 9am on the middle Sunday until before school on the first day of student attendance for the term;
(ii)For the first half in odd numbered years, from after school on the final day of student attendance for the term until 9am on the middle Sunday;
(d)On Father’s Day from 9am until 5pm if not otherwise already in the Respondent’s care;
(e)During Eid celebrations each year:
(i)On the first Sunday of the first Eid celebration of the year from 9am until 8pm; and
(ii)On the first Saturday of the second Eid celebration of the year from 9am until 8pm.
(f)For Nawrooz:
(i)In even numbered years commencing 2020, on the first Sunday after 21 March, from 9am until 8pm; and
(ii)In odd numbered years commencing 2019 on the first Saturday after 21 March, from 9am until 8pm.
(g)Any other times as agreed between the parents.
The Applicant shall use her best endeavours to encourage and facilitate the children’s relationship with the Respondent, and in particular shall encourage [X] to spend time with the Respondent during the periods of time when [Y] is spending time with the Respondent pursuant to these Orders.
Unless otherwise agreed between the parties, the changeover is to occur at the children’s school or at the Applicant’s residence.
The Respondent shall be at liberty to communicate with the children by telephone each Monday and Thursday between the hours of 6.30pm and 8.30pm, with the children to initiate the call.
For the purposes of telephone communication with the Respondent, the Applicant shall encourage the children to initiate the telephone call to the Respondent.
The Court requests that the Australian Federal Police remove the names of the children [X] born … 2002 and [Y] born … 2006 from the Airport Watch List at all points of international arrivals and departures in Australia.
The Applicant shall hold and retain each of the children’s passports.
The Applicant and Respondent are to do all necessary acts and sign all necessary documents so as to cause an Australian passport to be issued for the child/ren at any time that the current Australian passport expires or is due to expire.
The Applicant and Respondent are restrained from applying for a passport for any jurisdiction outside of the Commonwealth of Australia for each of the children.
The Applicant and Respondent shall notify the other parent as soon as is reasonably practicable of any medical emergency, serious illness or injury to a child while the child is in their care.
The Applicant and Respondent shall notify the other parent of any change of telephone number or address within 48 hours of such change occurring.
The Applicant and the Respondent are restrained from denigrating or making critical or derogatory remarks about the other parent or members of their family in the presence or within the hearing of any of the children or permitting the children to remain in the presence or hearing of another person doing so.
PROPERTY
Within 14 days of the date of these Orders the Respondent shall sign all documents and do all things necessary to close of the following accounts and direct the payment of the monies to the Applicant:
(a)The Westpac Youth Reward Saver account in the name of Ms A held with Westpac Banking Corporation (BSB …, Account Number …);
(b)The Westpac Youth Reward Saver account in the name of [Y] held with Westpac Banking Corporation (BSB …, Account Number …); and
(c)The Westpac Youth Reward Saver account in the name of [X] held with Westpac Banking Corporation (BSB …, Account Number …).
Within 14 days of the date of these Orders the Respondent and the Applicant shall sign all documents and do all things necessary to transfer to the Applicant the following shares held in joint names:
(a)Shares 1; and
(b)Shares 2.
The Applicant be declared the owner of the Shares 3 held in her name.
The Applicant be declared the owner of the motor vehicle 1 (Registration Number …) to the exclusion of the Respondent.
The Respondent be declared the owner of the motor vehicle 2 (Registration Number …) to the exclusion of the Applicant.
The Respondent is to indemnify and keep indemnified the Applicant in respect of any finance or loan secured over the motor vehicle 2 (Registration Number …).
Pursuant to section 79(1) of the Family Law Act1975 within 14 days of the date of these Orders the Respondent and Applicant are to sign all documents and do all things necessary to close the joint account with the Commonwealth Bank and direct the payment of the monies to the Respondent.
In accordance with section 90MT(4) of the Family Law Act1975, a base amount of $33,226 be allocated to the Applicant out of the Respondent’s interest in Super Fund K.
(a)In accordance with section 90MT(1)(a) of the Family Law Act1975:
(i)The Applicant (or her administrators, executors, beneficiaries, heirs or assigns) is entitled to be paid, using the base amount allocated in Order (24), the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations2001; and
(ii)The entitlements of the Respondent in Super Fund K (or the entitlement of such other person who becomes entitled to receive a payment out of the Respondent’s superannuation interest) are correspondingly reduced by force of this order.
(b)The trustees of Super Fund K (“the trustees”) shall do all such acts and things and sign all such documents as may be necessary to:
(i)Calculate, in accordance with requirements of the Family Law Act 1975 the entitlement awarded to the Applicant in the immediately preceding clause of this Order; and pay the entitlement whenever the trustee makes a splittable payment from the Respondent’s interest in the Super Fund K.
(c)This order has effect from the operative date and the operative date is the beginning of the seventh day after service of the sealed orders on the trustee of the relevant fund.
(d)After service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations1994 (“the SIS Regulations”), the Respondent shall do all such things and sign all such documents as may be necessary, including but not limited to exercising the Applicant’s request in accordance with the SIS Regulations, for the rollover or transfer of the non-member spouse interest to a complying superannuation fund of the Applicant’s choosing in accordance with the SIS regulations.
(e)It is noted that:
(i)The value of the non-member spouse interest is calculated in accordance with the SIS Regulations; and
(ii)Any payments from the Respondent’s superannuation interest in the Super Fund K made after the trustees have created a new interest in the Applicant’s name in the Super Fund K are not splittable payments in accordance with the requirements of the Family Law (Superannuation) Regulations 2001.
In accordance with section 90MT(4) of the Family Law Act1975, a base amount of $77,465 be allocated to the Applicant out of the Respondent’s interest in Super Fund L.
(a)In accordance with section 90MT(1)(a) of the Family Law Act1975:
(i)The Applicant (or her administrators, executors, beneficiaries, heirs or assigns) is entitled to be paid, using the base amount allocated in Order (25), the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations2001; and
(ii)The entitlements of the Respondent in Super Fund L (or the entitlement of such other person who becomes entitled to receive a payment out of the Respondent’s superannuation interest) are correspondingly reduced by force of this order.
(b)The trustees of Super Fund L (“the trustees”) shall do all such acts and things and sign all such documents as may be necessary to:
(i)Calculate, in accordance with requirements of the Family Law Act 1975 the entitlement awarded to the Applicant in the immediately preceding clause of this Order; and pay the entitlement whenever the trustee makes a splittable payment from the Respondent’s interest in the Super Fund L.
(c)This order has effect from the operative date and the operative date is the beginning of the seventh day after service of the sealed orders on the trustee of the relevant fund.
(d)After service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations1994 (“the SIS Regulations”), the Respondent shall do all such things and sign all such documents as may be necessary, including but not limited to exercising the Applicant’s request in accordance with the SIS Regulations, for the rollover or transfer of the non-member spouse interest to a complying superannuation fund of the Applicant’s choosing in accordance with the SIS regulations.
(e)It is noted that:
(i)The value of the non-member spouse interest is calculated in accordance with the SIS Regulations; and
(ii)Any payments from the Respondent’s superannuation interest in Super Fund L be made after the trustees have created a new interest in the Applicant’s name in the Super Fund L are not splittable payments in accordance with the requirements of the Family Law (Superannuation) Regulations 2001.
In accordance with section 90MT(4) of the Family Law Act1975, a base amount of $102,566 be allocated to the Applicant out of the Respondent’s interest in Super Fund M.
(a)In accordance with section 90MT(1)(a) of the Family Law Act1975:
(i)The Applicant (or her administrators, executors, beneficiaries, heirs or assigns) is entitled to be paid, using the base amount allocated in Order (26), the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations2001; and
(ii)The entitlements of the Respondent in Super Fund M (or the entitlement of such other person who becomes entitled to receive a payment out of the Respondent’s superannuation interest) are correspondingly reduced by force of this order.
(b)The trustees of Super Fund M (“the trustees”) shall do all such acts and things and sign all such documents as may be necessary to:
(i)Calculate, in accordance with requirements of the Family Law Act 1975 the entitlement awarded to the Applicant in the immediately preceding clause of this Order; and pay the entitlement whenever the trustee makes a splittable payment from the Respondent’s interest in the Super Fund M.
(c)This order has effect from the operative date and the operative date is the beginning of the seventh day after service of the sealed orders on the trustee of the relevant fund.
(d)After service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations1994 (“the SIS Regulations”), the Respondent shall do all such things and sign all such documents as may be necessary, including but not limited to exercising the Applicant’s request in accordance with the SIS Regulations, for the rollover or transfer of the non-member spouse interest to a complying superannuation fund of the Applicant’s choosing in accordance with the SIS regulations.
(e)It is noted that:
(i)The value of the non-member spouse interest is calculated in accordance with the SIS Regulations; and
(ii)Any payments from the Respondent’s superannuation interest in the Super Fund M made after the trustees have created a new interest in the Applicant’s name in the Super Fund M are not splittable payments in accordance with the requirements of the Family Law (Superannuation) Regulations 2001.
Other than as provided for in these Orders the Respondent is to retain pursuant to section 79(1) of the Act the following property:
(a)Any interest in Company N Pty Ltd;
(b)Any accounts with financial institutions in his own name;
(c)Listed shares registered in his own name;
(d)All furniture and contents currently in his possession or control; and
(e)Any and all other personal property in his sole name.
Other than as provided for in these Orders the Applicant is to retain pursuant to section 79(1) of the Act the following property:
(a)Listed shares registered in her own name;
(b)Any accounts with financial institutions in her own name;
(c)Any superannuation entitlements in her name;
(d)All furniture and contents currently in her possession or control; and
(e)Any and all other personal property in her sole name.
Other than as provided for in these Orders the Respondent and Applicant remain liable for any and all debts and contingent liabilities in his or her sole name respectively and in this respect each party shall indemnify and keep indemnified the other party from any liability.
In the event that the Respondent or Applicant or either parties’ legal representatives refuses or neglects to comply with any of these Orders requiring a party to execute a deed or instrument, the Registrar of this Court at the Parramatta Registry is appointed pursuant to section 106A of the Act to execute, in the name of the Respondent or Applicant as the case may be, any deed or instrument necessary to give effect to the Orders and do all acts and things necessary to give validity to the deed or instrument.
For a period of two years from the date of these Orders and pursuant to section 74 of the Family Law Act1975, the Respondent shall pay or cause to be paid to the Applicant by way of cleared funds the sum of $450 each week into the Applicant’s bank account with BankWest account: Ms Rice BSB …, Account Number ...
Remove all outstanding issues from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Rice & Rice is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 6086 of 2014
| MS RICE |
Applicant
And
| MR RICE |
Respondent
REASONS FOR JUDGMENT
Introduction
These are the Reasons for Judgment with respect to property and parenting proceedings between the Applicant, Ms Rice and the Respondent Mr Rice.
The parties have three children, Ms A born … 2000, [X] born … 2002 and [Y] born … 2006.
The final hearing proceeded over a number of days and indeed months. There were discussions between the parties during the proceedings in an attempt to reach a resolution. Those discussions did not bear fruit, and the parties continued on the warpath that had been their existence post separation. No punches were spared during the litigation. Despite the clear lack of assets in the property pool and some very sensible recommendations by an experienced and well regarded Family Consultant, the parties continued to litigate. The conflict between the parents remains high.
The proceedings were commenced by the Applicant pursuant to an Initiating Application filed on 17 December 2014, amended on 20 December 2016 and then further amended on 21 April 2017. The Respondent filed a Response on 9 February 2015, amended his Response on 14 December 2016 and then filed a further Amended Response on 28 July 2017.
The matter was initially set down for hearing in May 2017 but was not reached. It then came on for final hearing for three days commencing on 31 July 2017. It went over part-heard to 8 November 2017, with final written submissions being filed on 8 January 2018.
The judgment in this matter has taken just over 12 months to be delivered. This is not only because of the busy court lists, for which the parties bear no responsibility whatsoever, but also because of the plethora of material which was relied upon by the parties in running their cases. The transcript of the proceedings alone was close to 400 pages and the rest of the evidence estimated at approximately 1000 pages.
In the end, the resolution of the judicial controversy was not an intellectually difficult task, rather it was an enormously time consuming task. The time taken to review all of the affidavits, read the exhibits which went into the hundreds of pages, the transcript and the outline of submission, has far exceeded the four days of Court time this matter occupied.
Since receiving final submissions in this matter in early January 2018, the Court has heard and determined over 100 other final and interim applications in respect of the vast majority of which either ex-tempore or written reasons were delivered. It was while running such a list that the Court has had to read and consider all of the material before it in these proceedings.
In the end, the result is a simple one.
Documents relied on
The Applicant relied on the following documents at final hearing:
a)Further Amended Initiating Application filed 24 April 2017;
b)Application in a Case filed 24 April 2017;
c)Affidavit of Ms Rice affirmed 31 March 2017 and filed 3 April 2017; and
d)Affidavit of Ms Rice affirmed 21 June 2017 and filed 22 June 2017.
The Respondent relied on the following documents at final hearing:
a)Further Amended Response file 27 July 2017;
b)Affidavit of Mr Rice filed 30 June 2017;
c)Affidavit of Mr Rice filed 16 December 2016; and
d)Amended Financial Statement filed 30 June 2017.
The following documents became Exhibits in the proceedings:
a)Exhibit 1 – Child Dispute Conference Memorandum dated 30 April 2015;
b)Exhibit 2 – Family Report of Mr B dated 26 March 2018;
c)Exhibit 3 – Exhibits to Respondent’s Affidavit filed 30 June 2017;
d)Exhibit 4 – Exhibits to Applicant’s Affidavit filed 31 March 2017;
e)Exhibit 5 – Fact Sheet in relation to an incident on 30 November 2014, as contained in Subpoena material produced by Suburb C Local Court, being Sleeve 14
f)Exhibit 6 – material produced on Subpoena by Company O, as tabbed, being Sleeve 25
g)Exhibit 7 – Email from Respondent to Applicant dated 3 December 2014;
h)Exhibit 8 – Change of Assessment relating to Child Support to be paid by Respondent dated 18 September 2017;
i)Exhibit 9 – Pay Advice for Respondent from 26 February 2017 to 25 June 2017;
j)Exhibit 10 – Letter from Dr D dated 2 November 2017;
k)Exhibit 11 – Respondent’s NetBank Saver Bank Statement for the period 24 September 2014 to 23 March 2015
l)Exhibit 12 – Child Support Assessment issued 6 December 2016;
m)Exhibit 13 – Surgery Consultation Record dated 13 July 2011 from Subpoena material produced by Suburb E Medical Centre, being Sleeve 9;
n)Exhibit 14 – Material produced on Subpoena by the Commonwealth Bank; being Sleeve 17
o)Exhibit 15 – Bundle of Emails between the parties as tabbed;
p)Exhibit 16 – Material produced on Subpoena by New South Wales Police, as tabbed, being Sleeve 6; and
q)Exhibit 17 – Material produced on Subpoena by Family & Community Services, as tabbed, being Sleeve 5.
Factual Findings
The Respondent was born on … 1968 and he will, in less than 4 months, turn 51.
The Applicant was born on … 1971. She will be turning 48 later this year.
The parties married in the United States of America on … 1998. They separated in November 2014.
On … 1998, the Applicant arrived in Australia on a spousal visa. The parties commenced living together after this date.
After her arrival in the country from the United States of America, where she had been living, the Applicant commenced working full time as a professional in 1999 and was earning $45,000 per year.
At some point in 1998, the Respondent caused to be incorporated Company N Pty Ltd. The Applicant was listed as a secretary of the company albeit she did not actively participate in any decision making process. When one looks behind the corporate veil, it is clear that the company was the Respondent’s alter ego. Company N Pty Ltd stopped trading in 2000, although it was not de-registered until … 2002 by ASIC. The Respondent has not sought for the company to be re-registered.
The parties’ first child, Ms A was born on … 2000 and the Applicant ceased working to care for the child. She has never gone back to full-time work. At the time of separation Ms A had just turned 14 years old. She is now an adult.
The parties’ second child, [X] was born on … 2002. At the time of separation [X] was 12 years of age. He is now 16 and a half years old.
The parties’ third child, [Y] was born on … 2006. Whilst at separation [Y] was still relatively young, that is almost 8 years old, he is now 12 and about to start high school.
Throughout the relationship, the parties and the children lived in rental accommodation. In November 2012, the parties and the children moved to rental accommodation at Suburb F where they were living at separation. Initially after separation, the Applicant and the children remained living in this home. However, due to her inability to pay the rent, the Applicant and the children had to vacate the premises. Upon the Applicant and the children moving out, the Respondent moved back in. The Respondent presently remains living in this home.
The parties separated on a final basis on 30 November 2014 following an incident between the parties. The Respondent was removed by the Police from the family home. The parties had an argument. Following that argument the Applicant was taken to Suburb G Hospital with some injuries. The Respondent was arrested and charged with Assault Occasioning Actual Bodily Harm. A provisional Apprehended Domestic Violence Order (“ADVO”) was issued against the Respondent for the protection of the Applicant.
On 5 February 2015 the ADVO was finalised for a period of 12 months on a without admissions basis. The Respondent plead guilty to the charge of assault.
The parties attended mediation on 25 February 2015 where they agreed that the children will spend time with the Respondent for three hours each Sunday and each alternate Saturday at times to be agreed. Time progressed, in essence, to time on Sundays only.
On 17 May 2015 the Applicant alleged that the Respondent “slapped” the child Ms A across the face in the food court of … Shopping Centre. At final hearing the Respondent admitted that he flicked her on the back of the head after the child used the word “fuck”. However, the Respondent’s admission as to his conduct did not come about until after the Applicant served the Respondent with Closed Circuit Television footage obtained from the shopping centre. The Respondent’s initial response to the allegation was that he “… did not slap Ms A across the face whatsoever as alleged”. During the final hearing, the Respondent was very particular about the conduct he admitted to and the movement that he used in reprimanding Ms A for using a swear word in his presence. The Respondent did admit at final hearing that his conduct on the day was not appropriate.
On 28 August 2015 orders were made by the Court for the Respondent to spend two hours with the children each Tuesday from 6pm to 8pm supervised by Connecting Families.
The Respondent completed the “Parenting After Separation” course provided by Relationships Australia on 14 September 2015.
On 9 December 2015 the Respondent completed the “Engage 4 Dads” program provided by Anglicare.
On 13 January 2016 the Applicant sought an extension of the ADVO for a further 12 months as she was fearful of the Respondent following the receipt of emails from the Respondent. The application for extension was unsuccessful and the police were ordered to pay the Respondent’s costs.
The Family Report of Mr N was released to the parties on 30 March 2016.
In May 2016 the Respondent was called and subsequently visited by Suburb H Police to check on his welfare after a concerning telephone call was made by the Respondent to one of the children, who reported the matter to the Applicant. The Police were ultimately satisfied that there was no reason for them to follow up on the report.
On 17 July 2016 the Applicant consented to the Respondent spending time with the children in the presence of the paternal uncle from 12.30pm to 5pm.
On 9 October 2016 the Applicant consented to the Respondent spending unsupervised time with the children from 11am to 4pm.
On 8 May 2017 the Applicant consented to the Respondent spending unsupervised time with the children from 12pm to 8pm each alternate Sunday.
Family Violence
The Applicant makes a number of detailed complaints of family violence. The Respondent by and large disputes these assertions and says instead that the parties both engaged in conduct which was inappropriate.
The Court accepts the Applicant’s evidence in respect of the matters detailed in her affidavits filed on 3 April 2017 and 22 June 2017.[1] The Court makes a finding that the Respondent engaged in family violence within the meaning of s4AB of the Act.
[1] The Court is fully aware that the children of the relationship, one of whom is now an adult, may well in the future read these reasons for judgment. It is not in their best interest that they read the details of the matters which the Applicant deposed to in her affidavits. It is the Court’s view that it is sufficient for the purposes of the orders which are made herein that a general finding of family violence is made, the least of which can be supported by the matters referred to in paragraph 39 of these Reasons, and the ‘slap’ of Ms A on 18 May 2017 to which the Respondent also admitted.
Some examples of such conduct include:
a)Unreasonably withholding financial support needed by the Applicant to meet the reasonable living expenses of her and the children post separation, at which time the Applicant was at least predominantly dependent on the Respondent for financial support;[2]
b)Retaining the family motor vehicle 2 after separation in circumstances where this was a motor vehicle utilised by the Applicant to transport herself and the children and in circumstances where the Respondent knew that the Applicant did not have access to another reliable motor vehicle or the funds to obtain one;[3] and
c)Respondent’s conviction for Assault Occasioning Actual Bodily Harm dated 26 February 2015 following the assault of the Applicant on 30 November 2014.[4]
[2] Paragraphs 185-193 of Applicant’s Affidavit filed 22 June 2017
[3] Paragraphs 128 – 146 of Applicant’s Affidavit filed 3 April 2017
[4] The evidence in the proceedings does not contain the findings of fact upon which the conviction was recorded, but it does contain the facts asserted by the police in support of the application for a provisional apprehended domestic violence order
Despite stellar efforts by Counsel for the Respondent to put a particular gloss on the Respondent’s rude and inappropriate written communications to the Applicant, the Court finds that the Respondent has engaged in conduct which is belittling and abusive of the Applicant. The emails and text messages alone, forming a large part of Exhibit 15 are sufficient for the Court to make this finding.
While it is apparent that the Respondent has in more recent times curtailed the vitriol, his demeanour in the witness box does not fill the Court with confidence that without the spotlight of court proceedings shining brightly upon him, he will continue to behave in a civil manner towards the Applicant.
The Parenting Dispute
The Relevant Legal Principles to Parenting Proceedings
The central enquiry is for the Court to determine the outcome that will be best for the children the subject of these proceedings.
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, 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 underlying Part VII of the Act.
In determining what is in a child’s best interests, the Court must consider the matters set out in section 60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child. The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[5]
[5] see for example Slater & Light [2011] FamCAFC 1at [45]
In applying the primary considerations, the Court is to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both of the child’s parents.
A meaningful relationship “is one which is important, significant and valuable to the child”[6] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[7]
[6] Mazorski & Albright [2007] FamCA 520 at [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 at [121]
[7] McCall & Clark at [122]
In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence[8]. The Court may include[9] in the order any safeguards that it considers necessary for the safety of those affected by the order.
[8] s60CG (1)(b); See the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35] (although in the context of an interim hearing)
[9] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[10]
[10] MRR v GR [2010] HCA 4 at [15]
The Full Court in Goode v Goode[11] mandated that this legislative approach must be followed in all parenting cases. The High Court in MRR v GR[12] affirmed the legislative pathway.
[11] (2007) 36 Fam LR 422, (2006) FLC 93-286
[12] [2010] HCA 4
The Court’s Determination
At the time of the publication of this judgment, the children have had a limited relationship with the Respondent for almost four years.
Following separation the children spent limited time with the Respondent. In February 2015, orders were made by consent for the children to spend time with the Respondent on 15 and 22 February 2015. In May 2015, further orders were made by consent for the children to live with the Applicant and spend time with the Respondent every second Sunday from 9am to 7pm. It was during such time that an incident occurred between the Respondent and Ms A, which ultimately resulted in further consent orders in August 2015 which saw the children spending supervised time with the Respondent.
At the time of hearing, the children had been spending unsupervised time with the Respondent each alternate Sunday.
The parents are at odds with respect to the care that the Respondent provided to the children while the parties were living together. There is no dispute that the Applicant provided the bulk of the care, whilst the Respondent worked full-time. In any event, the parents have now been separated for almost four years. The determination of the parenting dispute by this Court will not be affected by any findings of fact as to the amount of care the Respondent provided to the children during their infancy and childhood prior to separation. It is sufficient to note that there was some care and involvement by the Respondent when the children were little and the parents lived together. The Respondent was certainly involved in hobbies on a weekly basis, an extra-curricular activity in which the children participated.
Post separation and to the date of final hearing, the Applicant has been the children’s primary carer. Not only has that been the case, but the Respondent has had little involvement in the children’s daily lives. The reasons for this are many and varied, but the fact remains that the Applicant has had the bulk of the care of the children since separation. They have a strong and loving bond with their Applicant, who attends to their daily needs, both physical and emotional. She is the person who has by and large met all of their needs post separation.
At the time of the publication of this judgment, the subject children are aged 18, 16 and 12. This was also their age at the time the final hearing concluded.[13]
[13] Closing submissions were made in January 2018
The children’s views are set out in the Family Report of Mr N. Those views are given significant weight given the children’s ages. The amount of time between the release of Mr N’s report and final hearing was lengthy. That has now been compounded by the time it has taken to publish these reasons for judgment. It is over three years since the children were interviewed. It is almost eighteen months since most recent events deposed to in the parties’ affidavits and their oral evidence.
There is no evidence that the children’s time with the Respondent had stopped or was at a risk of stopping during the period of time judgment was reserved.
Ms A is no longer a child and consequently no orders will be made in respect of her.
[X] who is almost an adult will no doubt make up his own mind about what he wants to do, that is, the amount of time he is to spend with this Respondent. While submissions were made that [X] should spend time with the Respondent on a regular basis, that is each alternate weekend during the day and for an afternoon in the mid-week, the Court finds that this is not an order which is in [X]’s best interest. Rather, given his age and level of maturity, the Court finds that it is in [X]’s best interest that he decide how much time he will spend with his Respondent. It is also a finding of this Court that it is in [X]’s best interest that he have an ongoing relationship with this Respondent and it is for that reason that an order for time is to be made.
[Y], who is 12 years old, will spend time with the Respondent largely also in accordance with his wishes as explained in the Family Report, but in a regime set out by the Court.
The Respondent has at times engaged in behaviour which was violent towards the Applicant. Some of this behaviour was in front of one or more of the children. The Respondent’s reaction to Ms A swearing in front of him was also inappropriate. These findings must lead to the conclusion that the Applicant’s fears in respect of how the Respondent would treat the children if they were to spend significant and substantial time with him, particularly in the years shortly after separation, were reasonable. The Respondent has however, in the time since separation, taken steps to address his anger and has learnt strategies to manage his anger and frustration. The Court finds that the Respondent has realised that some of his past responses were wrong, that he is sorry for his actions (where he considers them to be wrong) and that he has, at least to some extent, accepted responsibility for them.[14]
[14] Family Report paragraph 23-26
The two older children were, at the time of the Family Report interviews, a little wary of the Respondent. [Y] interacted particularly well with the Respondent during the observations of Mr N.
The Respondent, whilst assessed to pay child support, is in significant arrears. Findings about restricting the Applicant’s access to finances have already been made.
Lengthy and detailed submissions were made in the Respondent’s case in support of an argument that the Applicant had curtailed and restrained the children’s time with the Respondent post separation, and that she had acted unreasonably in not promoting a relationship between the children and the Respondent. It was further submitted that the Applicant had unnecessarily prolonged the period during which the children spent supervised time with the Respondent.
There is significant force in those submissions and it is correct that the Applicant could have done more to promote a relationship between the Respondent and the children, particularly after the release of the Family Report. However, the fact is that the children’s relationship with the Respondent remained curtailed[15] and the children continued to spend limited time with the Respondent. The Court cannot change the past.
[15] Not only as a result of the Applicant’s actions however, but more as a result of the circumstances of these proceedings being on foot and the way the parties chose to conduct the proceedings, delays in the Court and the parents’ differing attitudes as to their children’s needs and the extremely high conflict between the parties
Both of the parents propose that the children spend time with the Respondent. It is the frequency of that time that is in issue. That is a matter which has now been resolved by virtue of these orders.
Time between the Respondent and the children will also allow the children to have a continuing relationship with the extended paternal family, and to engage in significant cultural and religious events which are of importance to the children and/or the Respondent.
The Court has already made findings of family violence in this matter. As such the presumption of equal shared parental responsibility has been rebutted. The children will remain living with the Applicant. She will have sole parental responsibility for them.
The Property Dispute
The Relevant Legal Principles to Property Adjustment Proceedings
The overall approach to the determination of an application for property adjustment orders pursuant to s.79 Family Law Act1975 (Cth) was set out by the High Court in Stanford v Stanford,[16]where their Honours stated:
[16] [2012] HCA 52; (2012) 247 CLR 108
[37] … first, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property… the question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.
…
[40]… whether making a property settlement order is ‘just and equitable’ is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down”. To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.
[41] Adherence to these fundamental propositions in exercising the power in s 79 gives due recognition to “the need to preserve and protect the institution of marriage” identified in s 43(1)(a) as a principle to be applied by courts in exercising jurisdiction under the Act…
[42] In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order…
Such approach was subsequently considered by the Full Court of the Family Court in Bevan & Bevan[17], Chapman & Chapman[18] and Scott & Danton[19].
[17] [2014] FamCAFC 19
[18] [2014] FamCAFC 91
[19] [2014] FamCAFC 203
Once the issue of whether it is just and equitable to make any order is resolved, the Court is to then consider the contributions made by the parties as defined in s.79(4)(a) to (c), the matters set out in s.79(4)(d) to (g) and in particular the subjective considerations as to the parties by having regard to the provisions of s.75(2) in so far as they are relevant.
The Court is then to consider the justice and equity of the actual orders to be made, in the context of the Court’s obligations to make appropriate orders as provided for in s.79(1) of the Act.[20]
[20] see generally Russell & Russell (1999) FLC 92-877; Teal & Teal [2010] FamCAFC 120
The just and equitable requirement is “one permeating the entire process”[21].
[21] Bevan supra at [86]
The Court’s Determination
Given the breakdown in the parties’ relationship the requirement that it is just and equitable to make property adjustment orders has been met.
The property pool is to be divided as to 70% to the Applicant and 30% to the Respondent. The Respondent will pay the Applicant spousal maintenance in accordance with the orders sought by the Applicant. The reasons for this are set out in a nutshell in the paragraph below.
The Applicant has had and will continue to have the primary care of the parties’ children. The Applicant has a significantly lower earning capacity than the Respondent. There are limited assets, all of which were controlled by the Respondent during the parties’ relationship. The financial decisions were made by the Respondent during the parties’ relationship. He retained most of the assets post separation and has had control of them. He has acted in a manner which is dismissive of the Applicant’s financial needs since separation and which does not reflect well on his capacity to put the children’s needs above his own. He has taken a brand new motor vehicle purchased by the parties shortly prior to separation and retained it in circumstances where the children remained living with the Applicant post separation and spent very limited time with the Respondent. He continues to earn a high income yet has significant child support arrears.
The Court finds that the Respondent has not been fully open or frank in respect of his obligations for financial disclosure. There is no doubt that in financial proceedings between spouses each party must make a full and frank disclosure of all material facts[22]. The mere compliance with rules of the court or practice directions does not alter the basic principle of the need for full and frank disclosure. The purpose of full and frank disclosure must be “the need for each party to understand the financial position of the other party, which is at the very heart of cases concerning property”[23].
[22] See for example: Livesey v Jenkins[1985] 1 All ER 106; In the Marriage of Briese (1985) 10 Fam LR 642 ; [1986] FLC 91-713 and Oriolo v Oriolo(1985) 10 Fam LR 665 ; [1985] FLC 91-653
[23] See In the Marriage of Briese (1985) 10 Fam LR 642 ; (1986) FLC 91-713, approved by the Full Court in the case of Oriolo v Oriolo(1985) 10 Fam LR 665 ; [1985] FLC 91-653
At times, it seemed that getting any financial information from the Respondent was akin to pulling teeth – a painful and messy process. Despite very lengthy evidence and detailed submissions, the Court is not able to make precise findings about the asset pool and indeed there is no agreed pool of assets. In such circumstances, the Court should not be unduly cautions about making findings in favour of the innocent party.[24]
[24] Weir & Weir (1993) FLC 92-338
The parties have no real estate and the most significant assets are the shares held in the Applicant’s name and the superannuation held in the Respondent’s name. There are also funds in a bank account, said to be for the children. There is the motor vehicle, which was purchased at separation, but which has now significantly devalued due to it being older.
The following submissions are made on behalf of the Applicant:
a)The parties’ loans should not be included in the balance sheet. The Applicant’s loan was incurred after separation. Detailed submissions concerning the Respondent’s loans are contained at paragraphs 40 and 41 of these submissions. The loans subject to written loan agreement should not be included because they were incurred after separation and do not have a nexus with the marital relationship. The alleged loans by Mr J during the marriage are a concoction as submitted at paragraph 41 and the amounts of the loan deposed by the Respondent vary between his affidavit and two Financial Statements such that they are uncertain and vague. There is no evidence from the Uncle that the amounts alleged to be owed in fact required repayment. The absence of evidence from the Uncle or Aunts enable the Court to draw an inference their evidence would not help the Respondent.
b)The Respondent’s credit card debts and Child Support debts are post-separation debt and should not be included in the Balance sheet. The loan secured against the motor vehicle 2 is a post-separation debt the Applicant did not consent to on an asset she owned and has not had the benefit of.
c)Broadly the Applicant’s position is that the asset pool comprises the shares in Shares P, the parties’ superannuation funds, the motor vehicle 2, the Children’s bank accounts and the parties’ bank accounts. The Respondent included shares held by Company N Pty Ltd in the Balance Sheet. As the company is de- registered, the shares do not belong to either of the parties, however the Applicant is content to include them as the Respondent may in due course apply to ASIC to enable him to sell those shares on his behalf.
d)The Respondent values the Applicant’s household furniture at some $40,000. He does not provide any evidence in support of this figure and it should be rejected. Household contents should be excluded from the Balance Sheet as being of minimal value.
e)The Respondent filed two Financial Statements on 19 June 2017 and 30 June 2017 respectively. In the second Financial Statement, the Respondent estimates his weekly tax expenditure as $1,406 per week. In correspondence to the Applicant, the Respondent asserted he could not complete his tax returns because the information required to complete them was on a computer he had left at Suburb F prior to separation and that the Applicant would not return to him. During oral evidence he admitted, first, that he could have obtained all the documents required to complete tax returns from other sources, secondly, that he had not filed a tax return for three years and possibly not for 10 years. The “estimated” amount is not supported by evidence from tax returns or an accountant and the amount asserted should be given little weight.
f)In his Affidavit filed 30 June 2017, the Respondent asserted he bought, between 2009 and 2012, “a small quantity of gold bullion to keep for a rainy day”. The Respondent did not include gold in either of his Financial Statements. The Respondent did not obtain an expert valuation for the gold, nor did he depose to fluctuations in value or disposing of gold from time to time.
g)Annexure “S” of the Applicant’s Affidavit is a spreadsheet called, “Net Worth Tracking” (the spreadsheet). The computer had been in the Respondent’s study at Suburb F before and after separation and was used by the Applicant and children as well as the Respondent. Access to the Respondent’s material in the computer was password protected and the Applicant’s evidence was that she retrieved this document from the computer with the assistance of a computer expert in the first quarter of 2017. The Respondent asserted17 that the spreadsheet was “almost impossible to read” but that he “suspected” he created it as part of a university course subject. The Respondent knew the spreadsheet related to the parties’ assets at some stage before the final hearing because it was put to the Applicant that she had altered it to further her own cause. She denied the allegation. The Respondent did not seek to correct the evidence deposed at paragraph 204 of his Affidavit and did not particularise how the Applicant had allegedly altered the spreadsheet despite having had the spreadsheet in his possession for many weeks.
h)During cross-examination, the Respondent admitted each of the columns in the spreadsheet related to his own sole, joint and business bank accounts as well as private and business holdings of shares, gold and silver. He stated it “would not surprise” him if the figures in the “Netbank saver” column of the spreadsheet exactly matched corresponding amounts in Commonwealth Netbank Statement, indicating the spreadsheet mirrored the corresponding bank statements from time to time. He also admitted the spreadsheet contained accurately or, his words, “faithfully” “private” gold (that is not gold held by a company), shares and “possibly, from what I can remember, cash”. The Respondent conceded the amount of “private” gold represented in the column for the date 15 May 2013 was the same amount of gold owned at separation.
i)During cross examination the Respondent was taken to some transactions in the “private gold” column spreadsheet for the dates 8, 15 and 22 February 2009 and then to corresponding entries for the same dates in the Commonwealth Streamline Account column. The Respondent admitted it was “probable” that the decreases in the Commonwealth Streamline Account column corresponded with increases in the “Private Gold” column of the spreadsheet and indicated purchases of gold.
j)The spreadsheet states the parties held $96,000 worth of gold on 15 May 2013. It was put to the Respondent that he had not disclosed that gold or explained what happened to the gold between 13 May 2013 and the date of trial. The Respondent responded, “it was in my Affidavit”. The evidence in the Respondent’s Affidavit, was that the parties purchased about “10 ounces” of gold worth at the date of hearing about “$16,680”. The Respondent did not disclose that he sold any gold between the time of separation and the trial. The Respondent did not assert the value of gold had plummeted between the date of separation and the date of trial. The Respondent did not provide expert evidence of the gold’s value asserted at paragraph 102 of his Affidavit. Whilst it is conceded the value of gold represented in the spreadsheet is not underpinned by expert evidence, it is likely the values in the spreadsheet accurately represent the value of the parties’ assets as at the last date on the spreadsheet being 15 May 2013. This inference is supported by the Respondent’s concession that the spreadsheet accurately reflected various bank statements, shares and cash held from time to time.
k)The Respondent asserted the Applicant took “all our furniture and belongings along with our cash, gold and jewellery” when she left Suburb F with the children in June 2015. The Respondent stated he kept gold and cash in an envelope in the study and in the garage. He gave evidence that he removed the gold from the safety deposit box after reading that the US government were accessing safety deposit boxes and confiscating their contents. That the Respondent believed his gold was safer in a box in the family garage than in a safety deposit box is implausible and should not be accepted. It is more probable the gold remained in the safety deposit box at the time of separation. The Applicant’s evidence was that there was one key to the safety deposit box and she did not have it. She denied taking the safe contents. In an email to the Applicant dated 23 July 2015, the Respondent wrote he would draft an inventory of items the Applicant removed and what was left behind at Suburb F when he took possession. The inventory of items allegedly removed appears at annexure R26. The inventory should be given little weight as to assertions of value, given there is no evidence of when the inventory was drafted and no receipts are provided to verify the value of items.
l)It is notable that on March 15 2015, the Respondent wrote to the Applicant that it was “you and you alone who have chosen the path of a single mum with three kids on welfare”. In the same email the Respondent inserted a table itemising “some, but not all” items he had paid for since separation. He did not refer to the $20,000 cash or 10 ounces of gold allegedly left at Suburb F at the date of separation either to warn the Applicant not to touch them or to encourage her to spend the money and cash in the gold. Nor did he refer to those items when seeking the return of property in July 2015 after moving back in Suburb F. If, as the Respondent asserted in his affidavit, the parties were living “pay cheque to pay cheque, as we were big spenders and saved very little”, it is inexplicable he would not specifically refer to a significant sum in cash and gold allegedly at the Applicant’s disposal at separation and thereafter when she was requesting financial assistance. The Respondent did not refer to those items because they were not left in the house. They were in the safety deposit box.
The Court accepts these submissions in respect of the gold bullion on the basis on which those submissions are made.
The Court does not accept that the Respondent has established any liabilities by way of loans as asserted in his evidence. Such purported liabilities are excluded from the balance sheet. The Court also excludes the liabilities incurred by the Respondent post separation in respect of the motor vehicle 2, a motor vehicle which was purchased for cash while the parties were still in a relationship. The Applicant’s post separation debts will likewise be excluded from the property pool.
In respect of the significant child support arrears the Respondent has for non-payment of child support, while such a liability is established, it should not be borne by the Applicant. It is a liability that is therefore excluded from the property pool available for division between the parties.
For the purposes of property adjustment orders, and with the authorities about the Court not being overly cautious firmly in mind, the Court finds the following to have been established at the time of final hearing:
a)Shares 1 $6,900
b)Shares 2 $956
c)Shares P $128,751
d)Motor vehicle 2 $33,500
e)Shares held by Company N Pty Ltd $9,840
f)Superannuation – Super Fund K $49,592
g)Superannuation – Super Fund L $115,619
h)Superannuation – Super Fund M $153,083
TOTAL: $498,241
The value of the gold is unknown, and the Court finds that on the balance of probabilities all of the gold has been retained by the Respondent rather than the Applicant post separation.
The various bank accounts held in the parties’ names, household contents, and the Applicant’s motor vehicle are of either negligible value or of uncertain value and are therefore not specifically included.
The Applicant is to receive a 70% adjustment in her favour, for reasons explained earlier. This is roughly about $348,770. As such, she is to receive the following:
a)Shares 1 $6,900
b)Shares 2 $956
c)Shares P $128,751
d)Superannuation splitting orders $212,162
The Applicant is to otherwise retain all of the assets currently in her name, control or possession and likewise for the Respondent to the exclusion of the Westpac Youth Reward saver accounts held in the children’s names, which shall be closed and the proceeds of which shall be paid to the Applicant. Each of the parties is to retain all liabilities in their name. The Respondent will keep the motor vehicle 2, as the Court does not find that he has sufficient funds available to cause an unencumbered transfer of the car to the Applicant. To burden the Applicant with that liability is not just and equitable.
In respect of the Applicant’s application for spousal maintenance, the Court finds that the Applicant has established that she is unable to support herself adequately by reason of having the care and control of the children of the marriage and by reason of her incapacity for appropriate gainful employment and that the Respondent has the capacity to reasonably do so. In this regard, the Court finds that the Applicant has made various reasonable but unsuccessful attempts at obtaining gainful employment[25] and that she will continue to be the primary carer for the children of the marriage.
[25] These are set out in the Applicant’s evidence in chief
According to the Respondent’s Financial Statement he has a significant income of some $200,000 gross per annum. He spends about $500 per week on personal expenses, which are in the Court’s view, unreasonable. He spends about $300 per week on food, the same amount the Applicant spends on herself and the parties’ three children. He pays $125 per week to his Applicant. The Court finds that the Respondent has the capacity to pay spousal maintenance in the amount of $450 per week. Such spousal maintenance is sought for a two year period, on the basis that the property adjustment orders sought will allow the Applicant to repay some of her debts, but will not enable her to re-establish her financial independence. Rather a weekly spousal maintenance amount of $450 per week will allow her to retrain and re-enter the workforce. The Court accepts that these submissions have been established on the evidence.
On the basis of all of the above, orders as set out at the forefront of these reasons will be made.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 31 January 2019
Key Legal Topics
Areas of Law
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Civil Procedure
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Criminal Law
Legal Concepts
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Appeal
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Jurisdiction
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Charge
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Sentencing
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