Ryde and Raymond
[2008] FMCAfam 580
•12 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RYDE & RAYMOND | [2008] FMCAfam 580 |
| FAMILY LAW – Contravention – abusive text messages – father questioning child about mother’s new partner – child unwilling to spend time with father – mother took to changeover location – reasonable excuse. |
| Applicant (in the passport application and respondent in the contravention application): | MS RAYMOND |
| Respondent (in the passport application and applicant in the contravention application): | MR RYDE |
| File Number: | MLC 3803 of 2008 |
| Judgment of: | Riley FM |
| Hearing date: | 5 June 2008 |
| Date of Last Submission: | 5 June 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 12 June 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr O'Shannessy |
| Solicitors for the Applicant: | Maria Barbayannis & Co. |
| Counsel for the Respondent: | Mr Arnold |
| Solicitors for the Respondent: | MK Steele & Giammario |
THE COURT FINDS THAT:
None of the contraventions alleged in the contravention application filed on 22 April 2008 is proved.
THE COURT ORDERS THAT:
The matter be adjourned to 2 September 2008 at 9.30 am for further hearing in the duty list.
Until further order, all previous parenting orders insofar as they provide for the child [A] born in 2000 (“[A]”) to spend time with her father are suspended.
The parties forthwith enrol at [X] Contact Centre for supervised contact and changeover, with the question of the amount of time [A] is to spend with her father being reserved until 2 September 2008.
The parties forthwith agree upon a family therapist to undertake therapeutic counseling, with the mother to nominate three therapists and the father to choose one of them.
The parties forthwith arrange to undertake family therapy pursuant to section 13C(1)(a) of the Family Law Act 1975 and attend as directed by the family therapist.
The parties forthwith give a copy of these orders and the reasons for decision to the family therapist.
The costs of the family therapy be shared equally between the parents.
Pursuant to s.62G(2) of the Family Law Act 1975, the parties and [A] attend upon Jay Manya on 16 June 2008 for the purposes of the preparation of a Family Report to be given to the parties and the court on or before 30 June 2008.
The Family Report is to be paid for in the first instance by the parties in equal shares.
The Family Report deal with the following matters:
(a)any views expressed by [A] and any matters (such as [A]’s maturity or level of understanding) that would affect the weight that the court should place on those views;
(b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and
(c)any other matters that the Family Consultant considers important to the welfare or best interests of [A].
The parties comply with all reasonable directions as to attendance upon the Family Consultant as and when required by the Consultant.
Forthwith, the solicitor for each of the parties (or, if unrepresented, then the party himself or herself) deliver or cause to be delivered to the Family Consultant copies of the following documents:
(a)all relevant applications, responses and affidavits filed by the party in these proceedings;
(b)these orders and the reasons for decision; and
(c)any intervention or restraining orders currently in force.
Until further order, the father be restrained from sending any text or other messages, or in any way communicating with the mother, except via her solicitor.
The applicant mother is authorised and permitted to apply for and receive an Australian passport for the child [A] without first obtaining the written consent of the respondent father.
The mother be at liberty to take [A] for a holiday to Greece from
15 July 2008 until 17 August 2008.The mother forthwith execute a written charge over her home situate at Property N in the sum of $20,000 in the father’s favour and consent to him lodging a caveat over the said home.
Upon [A]’s return to Australia, the mother immediately deposit with the Registrar of this court any passport in the name of [A] born in 2000.
The Registrar hold any Australian passport so deposited in safe custody until further order.
IT IS NOTED that publication of this judgment under the pseudonym Ryde & Raymond is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 3803 of 2008
| MS RAYMOND |
Applicant (in the passport application and respondent in the contravention application)
And
| MR RYDE |
Respondent (in the passport application and applicant in the contravention application)
REASONS FOR JUDGMENT
Background
In this matter, orders were made by consent on 15 November 2006 regarding [A], who was born in 2000 and who is now seven years old. The orders provided for [A] to live predominantly with her mother. Initially, [A] was to live with her father for four nights each fortnight, and, from the second term of 2007, she was to live with her father for five nights each fortnight. Additionally, [A] was to spend time with her father from 5.00 pm on 24 December 2007 to 3.00 pm on 25 December 2007, from 2.00 pm on 31 December 2007 to 2.00 pm on 1 January 2008, half school holidays and various special occasions. Changeover was to be at [Z] school on school days and at a [Y] on non-school days.
The father claimed and, subject to the matters stated below, I accept, that [A]'s time with him had gone reasonably well until the end of 2007. However, the post-separation relationship between [A]'s parents was very troubled. The father gave evidence which was not disputed that the mother's brother had seriously assaulted him on 31 October 2005 at changeover at the wife's mother's house. The father also said, and I accept, that the changeover arrangements were intended to minimise contact between the parents.
It was put to the father in cross examination that he had made vile remarks to the mother about her sexual relationship with her new partner. He said that was only in the early days. However, a series of text messages were then put to the father. The first was a text message in the following terms sent to the mother on 14 August 2007 at
9.05 pm:
Pathetic & petty is exactly what u r. The extra time wont happen. Trust me. But we can discuss when I challenge u. Now seriously fuck off I have better things 2 occupy my time when unlike u obviously. Its 6.30. Why is it u do as u please but diff for others. Get a grip & deal with the situation. Fuck u have turned in2 a loser. Our daughter is more mature & dealing with the situation better thank u. B happy she loves being with both parents & wants both.
14 Aug 2007 21:05
From: [+61}
The father agreed in cross examination that the text set out above may have been an accurate record of the message he sent to the mother at the specified time. I accept that the father sent that message to the mother at the time specified.
The father agreed that on 16 November 2007, he had arranged for someone else to collect [A] from school without telling the mother. She sent the father a text message asking what was happening. The father agreed that he had replied to the mother at 5.02 pm on
16 November 2007by text in the following terms:
Your phone calls r not required. Whilst in my care I can send who ever I like & 4 your information my daughter absolutely loves the [H] family as they do her. U would do well in taking more care in what u do with her. Also advise that pathetic bunch of bored house wives not 2 involve themselves in MY affairs. Now as I have told u I have moved on & wont tolerate your crap. U r sucking, fucking, & swallowing some1 elses cock these days, u r their problem no my mine so just fuck off & deal with things without troubling me as I don’t care what u think, actually I never did.
16 Nov 2007 17:02
From: [+61]
In general, I prefer the mother’s evidence to the father’s, where there is a disagreement. The father’s claim that he had only made vile comments about the mother’s new sexual relationship “in the early days” was clearly false. He made such comments very recently. He later claimed that he had merely said the mother was a pathetic parent, when he clearly told her she was pathetic in every way. The father denied that he thought [A] was a liar, but he sent the mother a text message in which he said that, “[A] is a lying, cunning little girl.” For these reasons, I consider that the father is not an entirely truthful witness, and, overall, I prefer the evidence of the mother.
The father agreed in cross examination that the mother had replied to his text message sent on 16 November 2008 at 5.02 pm, saying thankyou for putting it in writing. However, the father said that the mother had also said a lot of other things first. I accept his evidence that the mother’s complete message was:
You are an unreliable, irresponsible father. You prove it each time. Now you better tell them never to take my daughter again, and I will tell them too. Your putrid messages are disgusting and I thank you for sending them in writing.
The father agreed that later on 16 November 2008, while [A] was with him, he had sent the following text message to the mother:
No problem anytime. Happy to put everything in writing. I fear no one especially not you. I will send who ever I like & do tell them. As 4 parenting skills, now that is a good one. How about a little girl saying why does mummy make funny noises when she is in bed with [G]? We still laugh at knowing u r fucking that. We also saw the latest photo of your stud. Fucking handsome!!Is your mum proud of her daughter or as [P] said he should be going out with her mum. You r a joke. U have done well. [A] sleeps on the floor whilst u guys go 4 it in bed thinking she is asleep. We have documented heaps over the last year. Wonder what that poor girl has seen. U r joke & always will be. Who would want the life u created 4 yourself no wonder she want to live with us & visit u. I can totally understand why u r so bitter, look at the pathetic life u created 4 yourself. Anyway go hard this weekend & enjoy yourself Ha ha. U r bitter pathetic women.
16 Nov 2007 18:31
From [+61]
It was put to the father that he had described the mother as pathetic. He tried to maintain that he had meant that her parenting skills were pathetic. However, it is clear from the text message set out above that he was referring to her life generally and the mother herself as pathetic.
The father agreed in cross examination that he had sent the following text message to the mother on 16 November 2007 at 8.45 pm:
U r so funny thank u for keeping us entertained. Just goes to show the standards of a desperate pathetic mother & I suppose [G] is used to sloppy seconds. Get what ever he can when he can. Hey what do his kids think of u. Why hasn’t your daughter meet them. We say embarrassed of u which would b normal. Anyway this can go on 4ever but I have better things to do. Like enjoy my lady & my daughter. Fuck they look hot together not like some & yes [A] does call her mummy so what does that tell u of what she thinkg of her & u & my daughter doesn’t need 2 b pushed 2 kiss or hug her like some & yes [A] has advised u told her she is not allowed 2 kiss or hug her & when your boy friend tries 2 kiss her she pushes him away & u say that not nice. My daughter has taste don’t corrupt it with your ugliness. Work on him because u r going 2 need the extra cash soon. Also as 4 families, I sleep very well @ night & people should learn 2 take ownership 4 their own actions. By cum dumpster & just enjoy your freedom with stud. Your family must b so proud of u as u r because u just cant keep from showing him off. I hear he had a ball @ your recent family function & u both looked so cute at [E]’s engagement. Your the best. Keep up the good work don’t stop keeping us entertained. In debit, dating a man who looks older than your dad living in [N]. You have done so well that even your mates bag you. I love life. I love divorce.
16Nov 2007 20:45
From: [+61]
The father said that he did not know who he meant by “us” when he said the mother was “keeping us entertained”. He agreed that he intended to criticise the mother for being in debt, living in N, and having a relationship with an older man. He said that in November 2007, he was paying $300-400 per month in child support. He said that he had discharged $800 in arrears of child support a week before the hearing. He agreed that he had turned his skill and intelligence to insulting the mother as well as he could.
The father displayed no regret in the witness box about the text messages that he had sent to the mother. He confirmed that he had not apologised for sending them. He displayed no recognition that there was anything at all concerning about the text messages that he had sent the mother. In the witness box, the father presented as cocky, self-satisfied, brash and convinced of his own superiority. He also presented as a man who is brusque, who speaks harshly and forcefully and who is quick to anger.
The mother said, and I accept, in view of the text messages set out above, that from about May 2007, [A] began to complain that when she was with the father he asked her questions about the mother and [G]. The mother also said and I accept that when the mother asked [A] how her time with the father had been, [A] would put her hands over her ears and make a noise indicating that she did not want to talk about it.
[A] was with her mother from the conclusion of school on Wednesday 5 December 2007. [A] was due to be with her father from 5.00 pm on 24 December 2007 until 3.00 pm on 25 December 2007.
Contravention 1
It was alleged that on 24 December 2007 at 5.00 pm at [Y] the respondent Ms Raymond without reasonable excuse made no reasonable attempt to comply with the order that [A] born in 2000 live with the husband, Mr Ryde from 5.00 pm on 24 December 2007.
The mother said in affidavit evidence, and I accept, that [A] was unwell on 24 December 2007 and said she did not want to spend time with her father that evening. However, the mother claimed and I accept that she told [A] that she had to go. The mother took [A] to McDonald's for changeover. The mother said, and I accept, that she approached the father and he said in an angry manner, “What now?” He admitted that he did not say hello to the mother. The mother said, and I accept, that she told the father that [A] was unwell and did not wish to go with him.
The mother said, and I accept, that the father became angry, walked over to the car and said, “Come on [A] get out of the car.” The mother said, and I accept, that [A] began to cry. It is common ground that [A] would not get out of the mother's car. The mother says, and I accept, that the father yelled at [A] to get out of the car and she cried more and became more upset. The father acknowledged in the witness box that [A] was very upset.
The father said, and I accept, that the mother claimed during this incident that she was not in breach of the orders because she attended changeover and that was all she had to do. The father said, and I accept, that the mother objected to the father undoing [A]’s seat belt, held [A]’s hand throughout the encounter and that the mother told [A] that she did not have to go if she did not want to.
The mother said, and I accept, that she tried to speak to the father and he pointed his finger in her face and yelled at her twice to, “shut the fuck up” in [A]'s hearing. The mother said, and I accept, that the father shouted at [A], “So you're not coming. I never want to see you again. You will keep. I will fix you up. I don't want to see you again until you're 18. I'll fix you.” The mother said, and I accept, that the father then slammed the car door of the seat where [A] was sitting. The father accepted that [A] was very upset.
The mother said, and I accept, that she then tried to calm [A] down. At that time, the father conceded that he had been upset and frustrated and thrown a paper cup of Coke at the car. The mother said that he had thrown it that the window of the door to [A]’s seat. The father said that he had actually thrown the Coke container onto the roof of the car. I prefer the mother's evidence. The mother said and I accept that [A] then became hysterical and the mother was unable to soothe her for some time. The father meanwhile drove off. He said he did not look to see the effect on [A] of his actions. He has never apologised for them.
The mother said in cross examination that she believed that, as a seven year old, [A] was old enough to make a choice and be heard. The mother agreed that she had discussed the legal proceedings with [A].
The mother was obliged to actively encourage [A] to spend time with her father. It is fundamental to children's short-term and long-term well-being that they are able to have a meaningful relationship with both of their parents provided that they can have such a relationship safely. It is an essential part of good parenting to actively foster and promote a good relationship between one's children and their other parent.
There is no evidence that the mother did actively encourage [A] to spend time with her father on 24 December 2007. On her own evidence, she merely told [A] that she had to go and took her to the changeover spot. She apparently made no effort to remind [A] that she would have a good time with her father, would see many of her relatives on her paternal side and would no doubt receive lots of Christmas presents. If the mother had been positive and encouraging about [A] spending Christmas with her father, I am confident that [A] would have gone with him. To that extent, the mother has breached the orders.
However, there is also the question of whether the mother had a reasonable excuse for the breach. The father had questioned [A] about the mother's relationship with [G] and had thereby caused [A] extreme discomfort. Asking children about their parents’ new partners places children in an invidious position. It is extremely unfair to the child and, as this case shows, can cause them great distress. It can also cause the child to want to avoid the parent who asks the questions about the other parent's new partner. That is what has happened in this case. The result was that [A] refused to go with her father.
The father was asked in cross-examination if he took any responsibility for what happened on 24 December 2007. He seemed to think that his conduct on the day was less than perfect but said that the decision had already been made before he arrived at changeover. In other words, he took no responsibility for [A]'s refusal to go with him. However, in my view, the father had a good deal of responsibility for [A]'s refusal to go with him. He had caused her extreme discomfort and considerable stress by asking her questions about her mother's new partner.
Even so, the mother could have encouraged [A] to go with her father, and, indeed, insisted. If the mother had done so, [A] would have gone, but been subjected to the father’s ongoing questioning about her mother and her new relationship. I consider that the prospect of that ongoing questioning was a reasonable excuse for the mother not providing effective encouragement to [A] to go with her father.
Moreover, the father's conduct towards the mother in the form of the text messages set out above was deplorable and despicable. The messages constituted a savage attack on the mother’s choices and abilities. The father was obviously determined to insult the mother, her new partner and her lifestyle. He was clearly trying to destroy her self-esteem and undermine her new relationship with [G] and undermine her relationships with her friends. It would appear that he has not emotionally recovered from the breakdown of his relationship with the mother and he is looking for pay back.
The father’s text messages to the mother go beyond extreme disrespect and amount to a deliberate attempt to destroy the mother’s self-confidence and self-esteem. If the father had succeeded, [A]'s mother would have been emotional shattered. Causing [A]’s mother to be emotionally shattered would obviously have a very bad effect on [A].
I consider that the father’s attacks on the mother’s psychological well-being constitute an additional reasonable excuse for the mother’s failure to more actively encourage [A] to go to her father. Accordingly, I find that alleged contravention 1 is not made out.
Having said that, it is clear that on 24 December 2007, both parents showed virtually no concern for [A]’s feelings or well-being. The mother must have known that bringing [A] to changeover would put her in the middle of an awful scene. It was entirely predictable that the father would react badly. However, the mother chose to bring [A] to the changeover for the mother’s benefit, in the belief that attending changeover would protect her, the mother, from being punished for contravening the orders.
The mother clearly knew before attending changeover that [A] would not go to her father, unless the mother was very insistent. The mother clearly had no intention of being insistent. The mother claimed and I accept that she told the father in advance that [A] would not go to him, and asked the father to try to re-establish the relationship by speaking to [A] by telephone in an attempt to regain her trust. The father rejected that suggestion. The mother should then have offered to organise therapeutic counselling. If the father had refused, the mother should have brought the matter before the court on an urgent basis. She should not have subjected [A] to the scene that inevitably transpired.
Although the father’s actions on Christmas Eve were entirely predictable, they were not excusable. He also bears a great deal of responsibility for the emotional state that [A] is now in, because of his actions before, on and after 24 December 2007.
Contravention 2
It was alleged that on 31 December 2007 at 2.00 pm at [Y] the respondent without reasonable excuse made no reasonable attempt to comply with the order that [A] born in 2000 live with the husband,
Mr Ryde from 2.00 pm on 31 December 2007.
The mother said, and I accept, that on 30 December 2007, [A] was upset and scared about the next day. The mother said, and I accept, that the mother was scared that if she tried to explain the situation to the father on the telephone he would abuse her. The mother said, and I accept, that she put [A] on the telephone to tell the father her wishes. The mother said, and I accept, that [A] was crying and said to the father, “I'm not coming.” The mother said, and I accept, that she then spoke to the father on the telephone and try to explain to him the effect of what had happened on Christmas Eve. The mother said that she could not get the father to understand and he raised his voice and told the mother that she had better be there tomorrow.
The mother agreed that on 30 December 2007 at 5.52 pm she sent a text message to the father as follows:
After last weeks behaviour [A] does not want 2 cum bcos how u treated her and she is sayn no holidays either.
Both parents and [A] attended the changeover location at 2.00 pm on 31 December 2007. The mother said, and I accept, that [A] was whimpering on the way there and the mother said to her, “It will be OK,” even though the mother was worried and scared.
The father said that he attended with his 13 year old niece, [D], who [A] adores. The father said that he texted the mother to bring [A] into the McDonald’s building, “to at least get her out of the car’’. The mother refused.
The father approached the mother’s car. He said, and I accept, that he noticed that [A] appeared unhappy. The mother said, and I accept, that he did not speak to the mother but said to [A], “Come on [A]. Get out of the car. Let’s go.” He said, and I accept, that he told [A] repeatedly that she must go with him and [A] replied repeatedly, “I can’t”. [A] did not explain why but kept looking at her mother. The mother conceded that [A]’s seatbelt remained on during the exchange.
The mother said, and I accept, that the father became angry and aggressive and loudly told [A] that she had no choice. The mother said, and I accept, that the father shouted at the mother that it was her fault and, when the mother tried to console [A], he shouted at the mother to “shut the fuck up” in [A]'s presence and hearing.
The father said and I accept that he “cautioned” the mother that she was in breach of the orders. The father said that the mother leaned towards the father aggressively and said “leave us alone” and “get out of our lives”. The mother was not cross examined on this allegation and I do not accept it.
The father admitted that [A] would have been scared by his behaviour but denied that the mother would have been. The father admitted that [A] was crying and distressed. The father admitted that he was angered and frustrated by the mother's behaviour.
The parties then discussed the prospect of the father relinquishing [A]. The father says that he asked the mother if she wanted him to relinquish [A]. The mother says that the father said, “That’s it, I relinquish everything. You ring child support and organise it.” The mother said she would. I prefer the mother’s evidence. That is, I accept that the parties discussed the father relinquishing [A] in front of her and the father immediately sought to escape his child support liability.
The father admitted that, after the discussion about him relinquishing [A], he removed the mother’s sunglasses, twisted them, threw them away and walked off. The mother said that the father had reached across [A] and snatched the mother's sunglasses from her face in a violent motion. The father denied that he had snatched the sunglasses from the mother's face and said that he had merely taken them from the console. I prefer the mother’s evidence on this point.
The events of 31 December 2007 were filmed by a friend of the mother. The film was taken from a distance. It showed the father standing and bending down in the open front passenger door of a car and [A] sitting in the front passenger seat. It showed [D] standing near the rear passenger door. Sometimes, raised voices could be heard, but none of the particular words spoken could be discerned. [A] at one point could be seen squirming away from her father. Otherwise, the film was not particularly enlightening.
In view of the father's questioning of [A] about the mother’s relationship with [G], in view of the debacle that occurred on
24 December 2007, and in view of [A]'s refusal to go with her father, the mother had a reasonable excuse for not further encouraging [A] to spend time with her father on 31 December 2007. Accordingly, I find that alleged contravention 2 is not made out.
Again, both of [A]'s parents showed almost no concern for her feelings. On 30 December 2007, when the mother was scared to speak to the father on the telephone, she made [A] speak to him. The mother might have thought that the father would be convinced by hearing from [A] herself that she would not spend time with him. However, it is obviously a very distressing conversation for a seven year old child to have to have with her father. The mother should not have put [A] through that ordeal.
Similarly, the mother should not have taken [A] to the changeover point on 31 December 2007 when it was entirely predictable that the father would behave in an angry and aggressive manner. Both parents appeared to be playing a game of brinkmanship and using [A] as a weapon in their battle. Naturally, [A] was crying and distressed on
31 December 2007. She should not have been subjected to hearing her parents arguing and swearing. She should not have been exposed to a discussion about the father relinquishing her in exchange for an end to his child support obligations. She should not have witnessed her father snatching her mother's sunglasses from her face and twisting them and throwing them away.
It is almost incomprehensible that parents could treat a seven year old girl in such a way. [A] was hysterical, crying and patently distressed by her parents’ words and actions. They are both seriously at fault in subjecting their daughter to the torments that she endured on
31 December 2007.
Contravention 3
It was alleged that on 6 January 2008 at 3.30 pm at [Y] the respondent without reasonable excuse made no reasonable attempt to comply with the order that [A] born in 2000 live with the husband, Mr Ryde for the second half of the 20/07/2008 school holidays commencing 6 January 2008.
This allegation was withdrawn after the conclusion of the father's evidence. However, as two further alleged contraventions occurred afterwards, it is necessary to set out the events surrounding 6 January 2008.
The mother said, and I accept, that [A] was distressed and scared during the holidays. She refused to collect the mail in case her father grabbed her. The mother said that she tried to encourage [A] to spend time with her father by saying that the mother would be in trouble if [A] did not go and by indicating that [A] had no choice. However, the mother said, and I accept, that [A] began to cry whenever the mother raised the subject and repeated that she did not want to go.
[A] was due to spend half of the school holidays with her father starting in early January. The father calculated that the changeover date was 6 January 2008. The mother calculated that it was 10 January 2008 and advised the father of that by text message. The father attended the changeover point on 6 January 2008 but the mother and [A] did not attend. The father instructed his solicitors to write to the mother’s solicitors saying that the father intended to institute contravention proceedings.
On 6 January 2008, the father sent the mother the following text message:
Whatever!!! At [Y] u stated the 9th, then had the 2 extra and u come up with the 10th. U r a mathematician, but in reality u r just a pathetic loser. Understand I no longer give a shit. U have had the 3 years & now its about ME. Seriously go play with your grandfather & leave me alone. Even 13 year old laugh at u. Ha ha.
Contravention 4
It was alleged that on 10 January 2008 at 3.30 pm at [Y] the respondent without reasonable excuse made no reasonable attempt to comply with the order that [A] born in 2000 live with the husband, Mr Ryde for the second half of the 2007/2008 school holidays.
On 9 January 2008 at 9.45 am, the father sent the mother the following text message:
As 4 assault, more bullshit claims. Anyway take it 2 court again & we will fight it As 4 bothering people I think u should look closer to home. I couldn’t give a shit about u, [O], your family or your pathetic life. A 7 year old doesn’t dictate nor should u support that stance. U broke orders. Now enjoy your 3 weeks off with [O] & deal with the shit u created & move on as everyone else has done. Also becareful what u say about others & 2 whom as these 2 r being dealt with if not already by the school. People r disgusted with your claims. Your message said u will bring [A] @ 6.30 did it not & u change it again! I have been very tolerate & accommodating but u abuse the orders which r going 2 change as well as where drop offs will take place. Talk about being all over the place. And u think u r not a loser. Seriously u r evil bitter person. What ever its 3.30 at [Y] as per orders & I wouldn’t breach the orders again consider all the litigation about to take place. Have a good day as u have made mine.
The mother brought [A] to McDonald's for changeover at the appointed time on 10 January 2008. The father made a tape recording of the attempted changeover. A transcript of the tape was provided to the court and the tape was played to the court. The mother accepted that the transcript was largely accurate. The mother was unable when asked to specify any particular inaccuracies. The father said that he had arranged for a professional typist to prepare the transcript and he had made corrections. Where the transcript says [A] was sulking, she was in fact audibly crying.
It was agreed that the tape went for about 20 minutes. However, the first and last few minutes give the overall flavour of the exchange. The transcript begins and ends as follows:
MR RYDE: There here. I’m getting out of the car.
(background noise and rustling)
MR RYDE: Hi spunky. Hi, spunky. What’s wrong?
(background noise)
MR RYDE: Don’t ... no, look, don’t cry. Why don’t you want to come, [A]? At least tell me. Three times I’ve come out this way. What’s going on? Mummy has to tell ... has mummy told you that you have to come? Huh?
(sound of child sulking)
MR RYDE: It’s your time to spend time with daddy. You’ve had your time with mummy, now you’ve got to spend some time with daddy.
(sound of child sulking)
MR RYDE: Stop the tears. I know when you come ... listen. I know when you come, you’re going to be okay and you’re going to be happy.
(Sound of child sulking)
MR RYDE: Come on. Tell her to come, [Ms Raymond].
MS RAYMOND: I have. And I’m not making my kid sick, okay.
MR RYDE: Why is she sick?
MS RAYMOND: Because you’ve traumatised her.
MR RYDE: What have I done to you [A]?
[A]: Nothing.
MR RYDE: Nothing, that’s right. So why don’t you want to come with daddy?
(Sound of child sulking)
MS RAYMOND: Explain to him what you tell me.
[A]: I can’t.
MS RAYMOND: I know.
MR RYDE: But you can tell me, come on. Don’t be scared.
[A]: I can’t mummy.
MR RYDE: You can tell me. Come on.
[A]: I can’t mummy.
MR RYDE: You have to come, [A].
[A]: No I can’t.
MR RYDE: [A], you have to come.
[A]: (sulking)
MR RYDE: Come on. Just come with me. You know what? Let’s do this. Come tonight, and if you’re still not happy you come ... mummy can pick you up tomorrow.
[A]:(cries.)
MR RYDE: Let go of her hand please.
MS RAYMOND: No, thank you.
MR RYDE: Let go of her hand.
MS RAYMOND: She’s not a dog or a stick.
MR RYDE: I didn’t say she’s a dog or a stick.
MS RAYMOND: Okay. Can you see she’s traumatised?
MR RYDE: Why is she traumatised?
MS RAYMOND: Well what you did to her Christmas Eve and New Years Eve.
MR RYDE: What did I do to her?
MS RAYMOND: And you insulted me right in front of her.
MR RYDE: When did I assault you, these claims you’re making?
MS RAYMOND: Oh, you didn’t pull the glasses off my face and scratch my face?
MR RYDE: I never touched you.
MS RAYMOND: Didn’t you.
MR RYDE: Where’s the scratch? Can’t see a scratch. Where did I scratch you?
MS RAYMOND: It’s been a while now.
MR RYDE: Oh, it’s been a while now.
MS RAYMOND: Anyway, listen, listen. I didn’t come here for a fight.
MR RYDE: Neither did I. I come to pick up my daughter for the third time I’ve come here and for the third time you’ve held her hand…
MS RAYMOND: She’s holding my hand. Hey, what do you think I’m going to do, usher her out or pull her out?
MR RYDE: No. Come on [A]. Come on.
[A]: I can’t do it mummy.
MR RYDE: You can’t do what?
[A]: (sulking)
MS RAYMOND: Explain to daddy that you can’t.
[A]: I can’t. (sulking)
MS RAYMOND: You can, he’s your dad.
[A]: I can’t. (sulking)
MR RYDE: You have to. Come on.
[A]: I can’t.
MR RYDE: I’m not leaving today without her.
MS RAYMOND: Well, I’m sorry.
MR RYDE: What are you sorry for?
MS RAYMOND: For making her sick. I’m sorry she’s been crying for how long?
MR RYDE: [Ms Raymond], have you spoken to your legal’s and realise what you’re doing is wrong?
MS RAYMOND: You no what, No I have not breached no order.
MR RYDE: Haven’t you?
MS RAYMOND: No. have I come here, have I not turned up with the child.
MR RYDE: Okay.
PASSER BY: She’s right.
MR RYDE: Go for it buddy
PASSER BY: We’ve all been through it.
MR RYDE: I recommend it to everybody.
PASSER BY: I’ve been through it.
MR RYDE: There’s light at the end of the tunnel, apparently.
PASSER BY:I hope so, for me anyway.
MR RYDE: Ahh yeah there will be, Thanks buddy.
MR RYDE: Come on spunky.
[A]: I can’t do it mummy.
(car engine starts)
MR RYDE: Listen, it’s not up to mummy, [A]. Listen
MS RAYMOND: [unclear], don’t, get your finger off me.
MR RYDE: I’m not ... I’m asking you to be quiet while I talk to [A].
MS RAYMOND: Yes, talk
MR RYDE: Can I talk to her? Can you get out ... let’s go buy a slurpy [A] and I’ll talk to you.
[A]: I can’t. I can’t.
MR RYDE: No, come out of the car.
[A]: I don’t want to [unclear - cries].
MS RAYMOND: I’m not letting her go like this. She’s never been like this.
MR RYDE: [Ms Raymond], you don’t have a say.
MS RAYMOND: Excuse me? I’m the mother of the child. Okay. I’ve done the right thing. I bought her crying, and throat, she’s had diarrhoea all day, and I’m not saying she’s been saying, I’m going on my own. Okay? You’ve been really mean to her. You’ve been really mean.
MR RYDE: I’ve been mean because I’m trying to get the girl out of the car? I’ve been mean?
MS RAYMOND: That’s when you started off with Christmas Eve, okay.
MR RYDE: I’ve been mean. Can you come…
MS RAYMOND: I no your are recording me.
MR RYDE: People are waiting. People are waiting for you, to see you.
[A]:I can’t do it mummy.
MR RYDE: Your cousins, everyone. Alright. I’ll ask you this question then. When am I going to see you [A]? If you’ve worked this out, when am I going to see you again? When are you going to come?
[A]: Mummy, I can’t [unclear - cries].
MR RYDE: Now why do you look at your mother, [A], when you want…what have you brainwashed her with?
MS RAYMOND: Me, nothing.
MR RYDE: [Ms Raymond], I want to ... I want to ... five weeks ago when I had her for the last time, dropped her off, I have her teacher who we’ve got in contact with, who is doing an affidavit for us, who says that she wanted her dad.
MS RAYMOND: Teachers don’t do affidavits.
MR RYDE: Don’t they. OK.
MS RAYMOND: Anyway…
MR RYDE: Anyway, her teacher who saw her, wanted to come, you didn’t want me to leave you, you didn’t want to spend four weeks with your mother… then we came
MS RAYMOND: Well you know what its about Christmas Eve and New Years Eve [unclear - overtalking].
MR RYDE: Stop.
MR RYDE: Stop, stop. Then we come here, [A]. You remember here? You didn’t want daddy to go and you were having a slurpy. Remember when we sat here, mummy and everybody? And we sat here? And you didn’t want me to go?
…
MS RAYMOND: And just say…
MR RYDE: So ... so you just want to come ... you just want to ring me, you never want to see me? You never want to see me again?
MS RAYMOND: Tell him the truth my darling.
[A]: I can’t.
MS RAYMOND: Why? He’s not going to do anything to you. (shouting)
[A]: I know. (sulking)
MR RYDE: Because it’s not what she wants.
MS RAYMOND: I’m not putting no words into her.
MR RYDE: Is it what you want? Is that all you want?
[A]: I can’t [unclear].
MR RYDE: You don’t ... wait a minute, you don’t want to sleep at daddy’s any more?
[A]: I can’t.
MR RYDE: Alright, stop, stop, stop, stop, stop, stop. Stop. Stop.
[A]: (sulking)
MR RYDE: Are you saying you don’t want to come and stay at daddy’s any more? Stop, [A].
[A]: I can’t. (yells)
MR RYDE: Yes, you can.
[A]: No, I can’t.
MR RYDE: Yes, you can.
[A]: No, I can’t.
MR RYDE: [A], what’s changed? Why all of a sudden .. no, just tell me this, and then that’s it. What has changed, baby?
[A]: I don’t know.
MR RYDE: What makes you now that you don’t want to come with dad?
[A]: I don’t know.
MR RYDE: You don’t know? What does that mean? So you don’t want me to pick you up at school this year?
[A]: I can’t say it. (sulking)
MS RAYMOND: You can say it, tell him to his face.
[A]:I can’t.
MS RAYMOND: Tell him to his face. Go to… why not?
[A]: I can’t. (yells)
MS RAYMOND: Why? Why?
MR RYDE: Because she doesn’t want to.
MS RAYMOND: Oh, that’s what it’s about.
MR RYDE: That’s it, ah? Okay.
[A]: I love you [unclear].
MR RYDE: I love you too darling. I…
[A]: (sulking)
MR RYDE: [A], I love you too. It’s alright.
MS RAYMOND: Just listen.
MR RYDE: It’s alright. It’s alright.
MS RAYMOND: Just
MR RYDE: You go. You go, okay. You have fun with mummy, alright. Daddy will do what he’s got to do and I’ll pick you up on the 8th February from school ‘cause that’s the next time I’ve got you, okay?
[A]: Okay.
MR RYDE: Alright. You have fun. You relax. It’s not your fault baby. I love you. Alright?
[A]: Okay.
MR RYDE: See you darling.
MR RYDE: What.
MS RAYMOND: Well done. I told you. Listen.
MR RYDE: You’ll be dropping off. I’m not coming back again.
MS RAYMOND: You know what? Listen.
MR RYDE: Here we go.
MS RAYMOND: Listen.
MR RYDE: Yeah, what is?
MS RAYMOND: [unclear], listen.
MR RYDE: Yeah, [Ms Raymond], you don’t make it easy.
MS RAYMOND: Listen. I do. You don’t know what it’s like behind closed doors, okay.
MR RYDE: Oh, I don’t have doors at home.
MS RAYMOND: [unclear] for a week…
MR RYDE: I ... I don’t ... oh, week.
MS RAYMOND: [unclear] Oh see, you don’t [unclear]. (shouting)
MR RYDE: You don’t think I’ve planned for four weeks?
MS RAYMOND: I don’t ... you know what? You shouldn’t have done what you did Christmas Eve.
MR RYDE: I didn’t do anything.
MS RAYMOND: You did.
MR RYDE: I didn’t do anything.
MS RAYMOND: You copped it.
MR RYDE: That’s fine. We’ll go to court.
MS RAYMOND: Who cares. Know what?
MR RYDE: Yeah?
MS RAYMOND: You’ll see it.
MR RYDE: Yeah, I know, you [unclear] eh. Okay. See you spunky. I love you. Yeah, I know you do baby. Don’t worry, you’ll come to daddy soon, okay? See you baby.
[A] did not go with her father on 10 January 2008. [A] said at the outset that her father had done nothing to her. The mother urged [A] to explain to her father why she did not want to go with him. [A] repeatedly said, “I can’t.”
The mother and father both spoke loudly and aggressively to each other in [A]’s presence. The mother told the father in [A]’s presence that she did not talk about him and said that he was “non-existent”. The father spoke harshly to [A]. This is despite the fact that the father was recording the exchange and decided to play the tape in court and produce a transcript of it. The father spoke much more gently and civilly to a passer by than to his own seven year old daughter.
The mother conceded in cross examination that she had not left the father alone with [A] to talk to her. The mother said that she regretted that. However, she did not accept that [A] might have changed her mind if the father had been able to speak to [A] alone. The mother maintained, and I accept, that [A] would not let go of her mother’s hand. Given [A]’s emotional state at that time, the mother’s claim seems to me to be very likely. The mother said that the father had asked [A] questions about the mother and [G] and when [A] said she did not know, the father called [A] a liar. The father denied this, but based on his overall behaviour, I accept the mother’s evidence on this point.
In view of the father’s questioning of [A] about her mother’s relationship with [G], and the very distressing events of Christmas Eve and New Year’s Eve, I consider that the mother, on 10 January 2008, had a reasonable excuse for not giving [A] effective encouragement to go with her father. [A] was obviously very reluctant to go, distressed and possibly traumatised. I find that alleged contravention 4 is not made out.
Again, I consider that both parents behaved appallingly in front of their daughter on 10 January 2008. The father clearly has no insight whatsoever into the impact of his actions on others. Equally, the mother appears to have no understanding of the torment that she put [A] through by insisting, in an emotionally overcharged environment, that [A] tell her father her reasons for not wanting to go with him. The mother also should not have said in [A]’s presence that her father was “non-existent”.
[A] has been caught in a loyalty conflict between her parents. For her own protection, it appears that [A] has felt that she needed to choose between her parents. That is a choice that no child should ever have to make, and a choice that no parent should ever force his or her child to make.
Contravention 5
It was alleged that on 8 February 2008 at 3.30 pm at [Z] school the respondent without reasonable excuse made no reasonable attempt to comply with the order that [A] born in 2000 live with the husband,
Mr Ryde at the conclusion of school on Friday 8 February 2008.
[A] was due to spend a few days with her father commencing on 8 February 2008. The orders provided for the father to collect [A] from school. In the meantime, the parties had exchanged text messages concerning the father relinquishing [A] in exchange for him paying no child support for her. The messages were as follows.
25-Jan-08 10:44AM; father to mother
Why am I still be asked to make CSA payments. Why have these not ceased as arranged. If I am to make payments then I am to see her even if that means taking her kicking & screaming. Don’t respond, call CSA & make those arrangements because I no longer care for this crap. I have finally achieved peace of mind especially over the last 6 weeks so keep it that way. My family is also aware & supports this stance so don’t bother them. Thanks
25-Jan-08 11:56AM; mother to father
Need sumthn in writing and I wil verify. Send 2 Property N.
25-Jan-08 12:29 PM; father to mother
Ok here we go again. U talk big & cant walk the walk, as u say slithering away. Snake is very fitting for u. Now u have to call CSA & advise them its now private collection between us which will be zero of course. U have to send me a letter stating u no longer want financial support & u will not come at me in the future as well. I have spoken to my legals, CSA & this is the correct procedure. Just do it & end this shit because I no longer care for it & we all will finally have peace. Thanks & have a good day.
25-Jan-08 12:36 PM; mother to father
First u write a letter 2 me that u hav no responsibilities 2 [A] and u wil not pursue in future and I wil cal CSA and make al th necessary arrangements.
25-Jan-08 12:54 PM; father to mother
Unfortunatly u have to do it. Call your legals & CSA to confirm. Just fuckn do it will u. U empowered & supported a 7 year old’s stance, I absolutley love the idea of being free from it all. It is what u have wanted from day one. Have her & enjoy your lives as I am doing. The ball is in your court unfortunatly so I am empowering you. Otherwise I will come & get her. For once do what your daughter wants & what is best. No more txt’s as I am wasting money on u both & your both not worth it. I await the CSA & your legals letters. DON’T DELAY this is what is best for all.
5-Feb-08 12:49 PM; mother to father
As per sms on 25 jan I wil b sendn u 2 sign consent orders which state that [A] lives with me at al times and that I hav al responsibilities and that u r not 2 pay any child support payments. Pls sign asap and return so I can lodge with th court as no lawyers need 2 b involved.
After apparently agreeing to relinquish [A] in exchange for paying no child support, the father then advised the mother that he was intending to collect [A] from school on Friday 8 February 2008 in accordance with the orders. A further exchange of text messages occurred as follows:
5-Feb-08 1:11 PM; father to mother
Lawyers 2 ensure this is air tight & u cant come @ me in future as well as [A]’s name is not 2 change & that she cant leave the country till an adult. Also I will b picking her up on Friday & explaining 2 her what is happening. Ensure she is @ school 2 b picked up no matter what. Kicking & Screaming i dont care. Have a good day.
5-Feb-08 2:17 PM; mother to father
Wel as per usual u wil try and make this messy with yr stupid demands! Don’t b at her skool she wil freak it and bettr yet I wil keep her home. I don’t need this from u leav us alone!
5-Feb-08 4:03 PM; father to mother
Who’s stupid. Look closer 2 home 4 that 1. They were reasonable requests. Now ensure she is @ school & tell her she is 2 come. Don’t embarrass her @ school as your pathetic family has done in the past. She has 2 deal with this eventually, see me & talk 2 me. Its tough love. She will b fine. R u going 2 only send her 2 school 7 days a fortnight. I will b @ school everday i am supposed 2 b & the law is on my side & the school has a copy of order as well. If no [A] this weekend u will b in court & [A] will come. What good mother poisions the child, only a pathetic one.
5-Feb-08 4:12 PM; mother to father
With th film and recordings and sms-s u take it 2 court and we wil see how great u wil look and no guts but 2 hang up! Now keep away bcos I wont put up with this any longer.
5-Feb-08 5:16 PM; father to mother
Court is only option we can see. As 4 what u think u have 4 court bring it on, why have I not seen anything or heard, because there is nothing 2 your pathetic claims. I agree this must & will end. It was fine all last year & them time with u & u poisioned her. But we will show that. U were given option but threw it away thankfully, & i have ben advised this not best option 4 [A] & your mother as u do nothing 4 her as we do. [A] is a lying, cunning little girl & the sooner u realise this the better. I will b there on my days, till told different, kicking or screaming. I suggest u have her there & i will take her & u shouldn’t b there. Don’t embarrass her @ school & exchanges wil take place @ family centres not as they r outside of school. I recommend u seek legal advice before Friday. As 4 hanging up i was on phone with CSA & saw that as more important than talking 2 u. Dont flatter yourself, i fear no 1 especially u or your entourage. Have a good day & tell [A] we will see her this weekend 2 resume our access visits. Please dont reply i am seriously not interested in what u have 2 say A 7year old dictating terms. R u serious. How ridiculous, Pathetic mother u r.
5-Feb-08 7:01 PM; mother to father
Well I am sik and tird of u and how u think u can treat us. Wel thank goodnes al evidenc esp yr voilent streak with u assaultn me on tape u wil waste yr time and as 2 weeks ago IN WRITING that u relinquish everything and now u think u can do this? Wel u r mistaken and i wil assur u now i have al film and recordings. Al yr behaviours over 4 weeks r appauling.
5-Feb-08 7:43 PM; father to mother
I will be there on Friday, Monday & Tuesday. Every fortnight. As 4 treating u, please u consent 2 orders & undermine them @ every attempt. Do u not see u cause all the grief. I love being divorced & what is in place but u always cause trouble. U r pathetic including the world u created & its every1 else’s fault but yours. U r a joke & i have decided 4 this reason i will remain in her life. Its best for her. Also i will b meeting with the principle on friday. 3 years on & u r the only 1 that has not found peace. But who would with your world. Kids laugh @ u. Get over your bitterness, anger. U r a joke. See u friday if u r there but i advise u not 2 b & ensure [A] is there.
5-Feb-08 9:16 PM; mother to father
Wel gd luk I hav told her and she sed she not goin, I wil b ther 4 her and u can cause any scene u think is appropriate, don’t think u can chang yr mind and then threatn and abuse and say things about my daughter and I wil advise school 2morow, ur actions r unacceptable and wont b tolerated.
5-Feb-08 9:32 PM; father to mother
Whatever see u Friday, Monday & Tuesday as stated, again u will be in breach, understand turning up is not enough. U r hindering our access. Now I have not changed anything. U didn’t accept & it was ance offer which I will explain 2 court. As u know having both parents is best & i do beleive the courts stance as well. U do realise she & we will @ least resort back 2 what we have with some compensation @ least, we hope. Take the risk. 4 now we resort 2 court orders. I will b taking her with me on friday no matter what. I seriously advise u 2 seek legal advice. Serioulsy do u think u r doing good. U create your own grief. At least i am happy. Kiss [A] & i hope u sleep well. Actually kiss [G] as well from me. Ha ha. Loser!!
The events that actually occurred on 8 February 2008 were described in a letter dated 2 June 2008 from [A]’s school in the following terms:
To Whom It May Concern
This letter is in response to a request from [Ms Raymond], mother of [A], that we provide you with confirmation of the details surrounding the school’s recommendation that the mother take [A] home from school on Friday 8th February 2008.
My name is Ms A and I am the Head of Junior Years’ Education at [Z] College. After meeting with [A] in my office on Friday 8th February, in the presence of the Head of Student Services, Mr R, we questioned [A] as to why she appeared distressed. She responded that she did not want to go home with her father that afternoon. [A] would not let her mother leave the school and she needed to be assured that she would go home with her mother. We calmed her down whilst Mr. R rang the father, Mr Ryde, to explain the situation.
I then contacted the Principal, Mr C, who after speaking with the child also felt that due to [A]’s emotional state that it would be better for her to go home with the mother that day, while both parents could determine how best to resolve the situation. Mr. C then spoke with the father over the telephone and explained the situation to him and suggested that he should consider not coming to pick up [A] that afternoon, as he had indicated that he would, but make plans to collect [A] at another time away from the school. We determined that the school would not be an appropriate environment where [A] may become distressed upon the arrival of her father that afternoon and the situation be witnessed by other students and parents of our school community. Mr. Ryde was understanding of the circumstances and agreed that in [A]’s best interests, he would respect our recommendation.
Mr. Ryde did not arrive that afternoon to pick up [A].We hope that the above information is helpful in explaining the circumstances surrounding this situation.
Sincerely,
Ms A
Head of Junior Years’ Education
and
Mr C
College Principal
In all the circumstances, I consider that the mother on 8 February 2008 had a reasonable excuse for not further encouraging [A] to go with her father. Those circumstances were that [A] was extremely distressed at the prospect of going with her father, the father had said in [A]’s presence that he would relinquish her in exchange for escaping his child support liabilities, the father had been violent and abusive in [A]’s presence towards her mother and the father had caused [A] distress by questioning her about her mother’s new partner. The school clearly considered that it was contrary to [A]’s interests to be forced to go home with her father. The school’s view was entirely proper and reasonable in the circumstances. I find that alleged contravention 5 is not made out.
On this occasion, both parents ultimately spared [A] the ordeal of another battle in her presence. It is to their credit that they did so.
The proposed trip to Greece
The mother wishes to take [A] to a wedding in Greece between 15 July 2008 and 17 August 2008. The mother has been asked to be a bridesmaid and [A] has been asked to be a flower girl. The father opposed the application, saying that the trip should be subject to the same conditions that the mother imposed on him when he went to Fiji with [A] a few years ago.
This sort of tit for tat mentality is very counterproductive. Hopefully, the parents will become more mature and more willing to give and take over time. In my view, there is virtually no risk that the mother will not return to Australia with [A]. The mother’s family is here and she has a house and a career here. Although the mother still has ties to Greece, her life is here. In any event, the mother has offered security in the form of a $20,000 charge over her home. That is more than enough to secure her return to Australia.
The trip to Greece will enable [A] to participate in what will undoubtedly be a magnificent event in her cultural heritage. I am sure that [A] will treasure the memories of the occasion. If the father were to stand in the way of [A] participating in such an event, she could be expected to resent him for it forever. That would obviously do little to improve her present relationship with her father.
The father argued that the timing of the wedding would interfere with the resumption of his relationship with [A]. However, if she is not permitted to go, it will make it much harder to get the relationship back on a good footing.
It is clearly in [A]’s best interests that she be permitted to participate in the wedding in Greece. Orders will be made accordingly. From an abundance of caution, I will require the mother to give security and deposit [A]’s passport with the Registrar on her return.
Therapeutic counselling
This case cries out for therapeutic counselling. The relationships between the parties and between the father and [A] have descended to an appalling level. They will be unable to recover without some serious professional assistance. It is in [A]’s best interests that she and the parties forthwith commence therapeutic counselling, in an effort to improve all of their relationships. The parties must understand that [A] literally needs them to be able to deal with each other in a civil and respectful manner.
The father had arranged for the parties and [A] to attend upon Jay Manya for the preparation of a family report later in June. That may be helpful, as it will be reportable and the report may tell the parties some home truths. However, contrary to counsel for the father’s submissions, I see no benefit in waiting on Jay Manya’s report to deal with either the proposed trip to Greece or the question of therapeutic counselling. The proper result in both cases is clear and compelling. There will be orders accordingly.
Further consideration
The matter will return to court on 2 September 2008 for interim hearing. It is to be hoped that, by then, the parties and [A] will have benefited from therapeutic counselling.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate: SARAH HESSION
Date: 13 June 2008
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