B and N
[2003] FMCAfam 100
•11 March 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| B & N | [2003] FMCAfam 100 |
| FAMILY LAW – CHILDREN – Residence – best interests of child – wishes of child – weight to be given to expressed wishes – three children residing with mother – girls ages ten years, seven years and five years – eldest girl the child of the mother and another man – eldest child expresses strong wish to reside with mother – separating siblings – family violence issues. Family Law Act 1975, ss.60B, 65E, 68F M & M (1988) 166 CLR 69 |
| Applicant: | A G B |
| Respondent: | K M N |
| File No: | PAM 2140 of 2000 |
| Delivered on: | 11 March 2003 |
| Delivered at: | Parramatta |
| Hearing Dates: | 8 & 9 January, 7 February and 6 March 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitor for the Applicant: | In person |
| Counsel for the Respondent: | Mr Allen |
| Solicitor for the Respondent: | Andrew G. Stewart & Associates |
| Counsel for the Children’s Representative: | Mr Berry |
| Solicitor for the Children’s Representative: | Watts McCray |
ORDERS
All previous parenting orders in relation to the children C M N born
20 July 1992, H P B born 31 July 1995 and K J B born 19 August 1997 are discharged.The said child C M N is to reside with the respondent mother who is to have the long term and day to day responsibility for the care, welfare and development of the said child.
The applicant father is to have contact with the said child C at all times that the said child wishes.
The children H P B and K J B are to reside with the father with effect from 5 pm on Sunday 16 March 2003 and to that end the mother should make available to the father the children's belongings including but not limited to their clothing, school necessities and toys.
The father and the mother are to have the long term responsibility for the care, welfare and development of the said children H and K.
The party with whom the said children H and K are living from time to time are to have the day to day responsibility for the care, welfare and development of the said children.
The mother is to have contact with the said children:
(a)Each alternate weekend during school term time from 5 pm on the Friday to 5 pm on the Sunday, extending to 5 pm on the following Monday should that Monday be a public holiday commencing on Friday 14 March 2003.
(b)For the first half of each term school holiday period from 9 am on the Saturday immediately following the conclusion of the school term to 5 pm on the second Saturday after the conclusion of such school term commencing on 12 April 2003.
(c)Each alternate Christmas school holiday period:
(i)From 9 am on the Saturday immediately following the conclusion of the school term to 12 noon on the 24 December; and
(ii)From 3 pm on Christmas Day to 5 pm on the fourth Saturday following the conclusion of such school term, commencing in the 2003/2004 Christmas school holiday period.
(d)Each intervening Christmas school holiday period:
(i)From 12 noon on 24 December to 3 pm on Christmas Day; and
(ii)From 9 am on the fourth Saturday following the completion of the school term to 5 pm on the Saturday immediately before the commencement of the next school term, commencing in the 2004/2005 Christmas school holiday period.
(e)From 9 am to 5 pm each Mother's Day when such day does not fall during a period when the said children are having contact with the mother.
(f)From 3 pm to 5 pm on each of the children's birthdays when such day does not fall during a period when the said children are having contact with the mother
(g)Such other periods as the parties may agree.
In the event that any of the children suffers any illness requiring medical attention or hospitalisation during any period of contact then the mother shall immediately notify the father of such illness and the name of the medical practitioner or hospital to which the child or children have been taken.
The father is to do all such things as maybe necessary to authorise the principal of any school attended by the children to provide to the mother copies of all school reports, notices, bulletins, newsletters and any other information regularly provided to parents of children attending that school.
The father is to notify the mother immediately of any major illness or injury suffered by any of the said children or any hospitalisation of any of the children and make available to the mother copies of any medical report or reports that maybe sent to the father in connection with such illness, injury or hospitalisation and is to authorise any hospital to which any of the children has been admitted or any medical practitioner responsible for treating any of the children to give such information to the mother as she may reasonably request.
The mother is to collect the children from the father at the commencement of each contact period. The father is to collect the children from the mother at the conclusion of each contact.
Weekend contact is suspended during the school holidays periods and the mother's weekend contact will recommence at 5 pm on the first Friday of the school term.
In the event that Father's Day falls during any period when the children are having contact with the mother then the mother shall return the children to the father at 9 am on that day.
In the event that any of the children's birthdays fall during any period of contact then the said children shall return to the care of the father from 3 pm to 5 pm on that day.
Both parties are restrained from consuming excessive alcohol or administering to themselves any prohibited drug for 24 hours prior to or during any period when the children are in the care of that party or permitting any other person to do so.
The mother is to do all such things and sign all such documents to have the father's name placed on the particulars of birth of the said child K held by the Registrar of Births, Deaths and Marriages.
Each party is to ensure that the children are able to attend guitar, swimming or dancing lessons arranged for the children.
All items produced on subpoena not being exhibits are to be returned forthwith.
All exhibits to be returned after the expiration of a period of one month from the date of these orders and the application is removed from the pending cases list.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 2140 of 2000
| A G B |
Applicant
And
| K M N |
Respondent
REASONS FOR JUDGMENT
This is an application by the father of two children, girls aged 5 and 7 years, to vary an earlier consent order of this Court that the two children should reside with the mother. He seeks an order that the children should live with him.
He also seeks an order that another child aged 10 should also reside with him. This girl named C is not his natural child but the child of the mother of one D S who now lives in Western Australia. C normally resides with the mother with the other two children.
The mother opposes this application. C's natural father has had very little to do with these proceedings but correspondence from him to the mother's solicitor which was annexed to an affidavit by the solicitor makes it clear that he does not wish to be involved in the proceedings. He would prefer that C should continue to reside with the mother and he has no objection to the applicant having contact with the child, but that is the limit of his participation in these proceedings.
I would mention that he was given the opportunity of further participation but declined to avail himself of that and it was only as a result of the mother's solicitor doing his level best to comply with directions from the Court that we were able to get that degree of information from him.
The father and mother are respectively 33 and 31 years of age. The father was born on 11 March 1970, the mother was born on 1 August 1971. The parties commenced to live together in either April 1994 according to the father or July that year according to the mother. They separated on 30 December 1999.
The child C M N was born to the mother and Mr S on 20 July 1992 but it appears that she has always lived with the mother. Of the two children born to the applicant and the respondent, the child H P B was born on 31 July 1995 and the younger child K J B was born on
19 August 1997.
There have been proceedings between the parties that led to orders being made by consent in this Court on 4 May 2001 providing that the children should reside with the mother and that the father should have contact on alternate weekends, during school holidays and at other times like birthdays, Father's day and the Christmas period.
The consent orders also provided that the children should have reasonable and liberal contact with the child C as agreed between the parties. The orders noted that D S had been served with the father's material and did not oppose any contact order being made.
It was also noted that it was the intention of the parties that C should attend contact with the other two girls if she wished to do so.
The proceedings came about because the father did not return the children after contact at Easter time in 2002. The mother sought a recovery order on 5 April. The father claimed that the mother was not in a position to take the children back due to being heavily intoxicated. The children were subsequently returned.
Both parties have formed new relationships and the people concerned gave evidence at these proceedings. On 31 May 2002 interim orders were made by consent to this effect.
(a)To provide for some specific contact.
(b)To restrain the mother from bringing any of the children into the presence of M O with whom the mother had formed a relationship; and
(c)To require the parties to submit to blood and urine testing for alcohol and/or drugs.
I subsequently made directions for final hearing which included ordering that the children should be legally represented and that there should be a family report.
The father claims that the mother is no longer capable of providing adequate care for the children because of her tendency to drink alcohol to excess and to use prohibited drugs. He also says that her association with Mr O is not in the children's best interests because Mr O has a criminal record which includes crimes of violence, motor offences and offences involving the abuse of alcohol.
The mother denies these claims and points out that the father has a history that includes violence, and that he was violent to her. She also says that the children do not want to live with him, particularly C.
The father gave evidence by affidavit and was cross-examined by Mr Allen counsel for the mother and Mr Berry of counsel for the children's representative.
The father's partner Ms H gave evidence and was subject to cross-examination.
The mother gave evidence in some detail as did Mr O who was subjected to an extensive cross-examination of his criminal record by Mr Bury for the children's representative.
The mother also called her own father Mr C A N to give evidence and she called L C. They were subject to cross-examination mainly by Mr B and I would have to say that compared to the other witnesses their evidence was peripheral.
The Court had ordered that a family report be prepared pursuant to section 62G of the Family Law Act. There was indeed a report prepared and as I will make clear there was a necessity for a supplementary report to be made. The reports were prepared by Mr Bruce Hawthorne a Court counsellor and Mr Hawthorne was cross-examined about aspects of his reports.
The first report was completed on 15 August. The counsellor interviewed both parents, Ms H, the children H and K. He observed the children, or those two children, with their mother, then with their father, then with their father in the company of Ms H.
The child C was not presented for examination or interviewed by the counsellor on that occasion. The counsellor made some critical comments in his report about that. In a paragraph headed "Notandum" on page 7 of the report Mr Hawthorne said.
Ms N did not bring C to the first appointment held on 5 August. Her explanation for not doing so is that she thought the present litigation referred only to H and to K. Ms N agreed to bring C to another appointment which was scheduled for 9 August and Mr B and Ms H agreed to return on that date. Ms N failed to bring C to the second appointment and did not return a telephone call which the reporter —
that is, Mr Hawthorne,
— made to her on the same day. Mr B and Ms H attended as arranged.
The counsellor went onto comment in his discussion on page 12 of the report:
Because of C's non attendance for the preparation of this report she has been denied a voice in the present proceedings. Her relationship with her two younger half sisters is unknown, although neither parent suggests that the three children do not relate well with each other. Should the Court decide that there are compelling reasons to remove the children from Ms N's care it seems advisable that C also reside with Mr B unless her biological father were to intervene in the proceedings.
Of course what happened is that the biological father chose not to intervene in the proceedings. I did order a supplementary report and indeed the hearing did not proceed at the expected time and a supplementary report was prepared by Mr Hawthorn and an updated report was made on 20 September.
In that report Mr Hawthorn spoke to C and reported that the child was initially reluctant to accompany him to his office where she thought that she would have to face the applicant. One assured that he was not waiting in the office for her she came happily. He described her as a quiet yet friendly girl for whom school is a positive experience, rather poignantly she spoke with some sadness about her biological father who resides in Western Australia and whom she sees only rarely and from whom she infrequently receives telephone calls.
C expressed an unequivocal wish to reside with her mother rather than with Mr B. She indicated that she would feel happier if the judicial decision was for her to live with her mother but would not feel safe if she was ordered to live with Mr B. She explained that she feared that he may assault her as she had seen him assault her mother prior to separation.
She indicated to the counsellor that she was closely aligned with her mother, worried about her mother, admitted that she had sometimes seen her mother under the influence of alcohol, denied that the mother became drunk at home.
She identified K as her favourite sibling but reported that she sometimes got angry with her younger sisters who often teased her. Her first preference was for her to live with her mother and for the other two children to live with the applicant. Her second preference was for the three of the children to remain in her mother's care.
She was seen with the applicant in the presence of the counsellor. He described her as quiet, tearful and seemingly anxious. She did not wish to tell the applicant herself as to what her wishes are but asked the counsellor to do so. The counsellor described the applicant, and I quote:
Mr B sensitively assured her that he respected her wishes but stressed to C that he loves her as his own daughter and that she would always be most welcome to visit or telephone him at any time.
Interestingly, in the report dated 18 September Mr Hawthorn indicated that if the Court were to determine the residence of K and H in favour of Mr B, the separation of the three siblings which such an arrangement would involve does not appear a salient issue. Regular and frequent contact with their mother would ensure that the younger children spend considerable time with C.
Notwithstanding those developments, the applicant father elected to proceed with his application in respect of all three children.
The counsellor had spoken to H and K, and noted in fact that H was not able or prepared to specify her preferred residence parent. She reflected a wish which is quite common of children of her age that she could be with both parents. The observation of the two children with their parents indicated a positive relationship with each one.
The counsellor came to the conclusion that whatever the decision regarding the children's residence, their contact with their non resident parent needs to be frequent and regular. Indicators are that Mr B can offer the children a valuable experience of family life and can provide them with some respite from whatever they maybe experiencing if in the care of their mother. If they did live with their father the children would need to continue to see their mother frequently because there is a significant attachment.
In his cross-examination Mr Hawthorne indicated that it was not still his view that the children should remain together and he noted that in his second report, the 18 September one, the child K had made a strongly expressed preference to stay with the mother and that her first preference was to be separated from her younger siblings.
Mr B elected not to cross-examine Mr Hawthorne.
What are principles that the Court should consider? Section 60B of the Family Law Act1975 sets out the object of Part VII of the Act which deals with applications relating to children. Subsection (2) sets out the principles underlying the object in s.60B(1). Section 60B of course refers to children's right to know and be brought up by both parents and have contact with those parents and other adults significant to them.
It is clear from s 65E of the Act that in deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration and in fact I refer to the decision of the High Court of Australia in M v. M (1988) 166 CLR. page 69.
Subsection 68F(2) sets out the matters that the Court must consider when deciding what is in the children's best interests. The Full Court of the Family Court made it quite clear in their decision in B v. B. (Family Law Reform Act1995) (1997) 21 FLR. page 676, FLC 92-755, that the Court when dealing with these matters must consider the matters set out in the various sections but the best interests of the child must be the paramount consideration.
As I said, s.68F(2) provides the guidelines for allowing the Court to decide what is in the children's best interests, although it is not, and I will comment on this, an exhaustive list. Nevertheless, the Court must consider all of the matters in s.68F although not all of them will be relevant in every case. I have done so in the matter before me.
Subsection 68F(2)(a) relates to wishes expressed by the child and the age and the level of maturity of the child. This is quite often an important consideration and it is a matter of some importance in the proceedings before me today.
The Court should consider the children's wishes and give them such weight as the Court considers appropriate in the circumstances. I refer to Harrison v. Woollard (1995) 18 FLR 788, FLC. 92-598.
Harrison v. Woollard made it clear that the Court must not only consider the children's wishes but show that those wishes have been considered. Wishes of children are not relevant just because they are expressed by children. Of course the Court is not bound by the children's wishes although the Court must take them into account. There are two authorities of some relevance to that; R v. R Children's Wishes (2000) 25 FLR 712, FLC 93-000 and also more recently In the Marriage of R [Children's Wishes] (2002) 29 FLR 230.
Whilst the ages of the children concerned will have a bearing on the weight that the Court will give to their expressed wishes, even the wishes of relatively young children will be relevant. In the decision of Joannu (1985) FLC 91-642 the four children concerned were aged 8, 7, 5 and 4. The Full Court of the Family Court held that the evidence of the wishes of those children would not have been irrelevant. It may or may not have been helpful depending on factors which could only become clear when a counsellor had seen the children and given a report.
In Radford v. Alpe (No.2) (1985) FLC 91-622 the Full Court upheld a decision by the trial judge that the children were likely to be so resentful if they were taken away from the care of their mother that their resentment would be such as to damage irreparably their relationship with the father and his new wife.
This theme was continued in K v. Z (1997) 22 FLR 382, FLC 92-768 where the Full Court held that:
Some most significant factors which are not spelt out specifically in section 68F(2) include the child's happiness and contentment. The Court should avoid placing or leaving a child in a situation of sadness and continued unhappiness where it is able to do so consistently with otherwise meeting the best interests criteria.
How do we ascertain the wishes of the children? The family report is particularly helpful where the children are legally represented as they are in this case. The children's representative can provide a great deal of assistance and there is in fact some other evidence.
I deal with the child C. The family report makes it clear that C has expressed an unequivocal wish to reside with the mother rather than the applicant. Her first preference is that she lives with her mother and the two siblings go and live with their father. The second preference was for the three of them to remain in their mother's care.
Those submissions have also been made by the counsel for the children's representative relating strongly to C's wishes.
There is also evidence from the father himself. The father in his evidence made clear that he was aggrieved that there had been contact with C but that after these proceedings, especially as they related to C, had got under way C stopped coming on contact. He attributes this to some action by the mother.
He refers to an incident when he and Ms H wanted to go to the children's school for an open day and he sought to visit C's classroom. He reports that C showed signs of distress at his presence and he, respecting her wishes chose not to continue with that particular visit.
So there is all this evidence about the wishes of the child. As I said the Court is not necessarily bound by the wishes of the child. The weight that the Court gives them is a matter for the consideration of the age of the child and the child's level of maturity.
In this case C is 10 years old. She was born on 20 July 1992. She is in fact closer to 11 than 10. She is of an age where her wishes would be given some weight. She is the eldest of three children. The counsellor in his report on page 8 described her as physically and socially mature. She was able to express her wishes unequivocally.
I am of the view that I would have to give the child's wishes considerable weight in my deliberations.
I look at the situation in respect of the children H and K. They are younger but their wishes would not be irrelevant. H is 7, she will be 8 in July. K is 5, she will be 6 in August. The younger child K did not express any particular preference to the counsellor. H in a position as I mentioned earlier where she has separated parents would prefer to be with both of them. Whichever way the decision goes she is going to have some sadness.
Those are matters that of course that I need to take into account and indeed as I said the wishes of children are regarded as significant.
I look at the nature of the relationship of the child with the parents and with other significant people. C has a good relationship with her mother. She is sad that her natural father lives on the other side of the continent and does not appear to have a great deal of contact with her. The child H has a good relationship with her mother, as does K.
As far as the applicant is concerned there was a good relationship on the applicant's evidence with C but there is not now and there has not been for some time.
The father's view is that it is the mother that has done this but for whatever reason I am left with the situation that there is not a good relationship between C and the father. It's certainly clear that H and K have a good relationship with the father.
Each party has formed a new relationship. The mother is in a relationship with Mr O. Mr O has been kept away from the children by injunction although the father says that there have been times when Mr O has been in the presence of the children. That is not agreed to by the mother.
He was not in attendance when the counsellor prepared the report. Mr O in cross-examination indicated that he had not seen the children, he did not see his role as being significant in the lives of the children.
The applicant has formed a relationship with K E H. The relationship between K H on the one hand and the two children H and K appears to be a good one. H in fact spoke positively of Ms H to the counsellor. There is no evidence about the relationship between Ms H and C.
The other matter of course is that one looks at the relationship of the children with each other. Certainly H and K are close and all the evidence points to the need for those children to remain together.
C spoke positively of her relationship with the other children but indicated that they teased her and interestingly as I said expressed this preference that she should live with the mother and the other children should live with the father.
I look at the likely effect that any changes in the children's circumstances. Of course changes in children's circumstances would involve them going from living with the mother to the father. The geographical distance is not great but the psychological or emotional effect is significant. If C were not to live with the mother she would not like that, would not be happy and she has already made it clear that living with the applicant is not what she wants. If C remains living away from the applicant the counsellor sees no detrimental effect in that.
If the younger children H and K were no longer to live with their mother but with their father the counsellor did not see any great detriment to that and pointed out that there were some advantages in the family arrangement that Mr B was attempting to set up.
As to the separation of the children from each other, the evidence is clear that H and K should be together but Mr Hawthorne was not of a view that there would be any particular detriment if C on the one hand and H and K on the other were separated.
Because the parties are not geographically separated by great distance, there is no particular practical difficulty as far as contact is concerned.
If one looks at the parenting capacity of the parties neither one of them can escape without some criticism. The father is critical of the mother's use of alcohol which he says is to excess although the mother and her father deny that, and also the mother's involvement with prohibited drugs and indeed there was some evidence of her involvement with marijuana.
The father has at times been open to the criticism of having been insensitive in some way, perhaps approaching matters at times rather like the proverbial bull in a china shop and perhaps being overly persuaded of the rightness of his own cause.
The Court looks at the children's maturity, sex and background. They are three little girls aged 10, 7 and 5. They are from a European/ Australian background. As Mr Berry hastened to point out, there is no Aboriginal or Torres Strait Islander considerations that need to be considered from a cultural point of view.
As to the gender of the children, they are all little girls but there is no judicial preference that the mother is the best person with whom young female children should reside. The reference for that is Raby (1976)
2 FLR 11,348, FLC. 90-104.
The proper approach for a Court is to make a full investigation of the relevant circumstances so as to make an accurate assessment of the suitability of each parent and I refer to the decision in ReEvelyn (1998) 23 Fam LR 53, FLC. 92-807.
I am required to look at the need to protect the children from physical or psychological harm. I am required to consider the question of family violence and I am required to consider the question of family violence orders as apprehended violence orders are referred to in this jurisdiction.
There is a history of violence. There is certainly a history of violence also with Mr O. There have been apprehended violence orders in existence. The applicant cannot escape from criticism as a result of some of his actions in the past.
These matters cannot be undone but there is a clear need for the parties to proceed on the basis that violence will not be a feature of family life in the future and indeed the Courts are well aware of the detrimental effect of family violence on children.
Subsection 68F(2)(k) requires the Court to consider whether it be preferable to make an order that would be least likely to lead to further proceedings.
The father suggests that the children should be with him. The mother does not agree and I am not of a view that there is any particular point that would indicate that one order or another would be less likely to lead to situation where there were on further proceedings.
It may well be whatever the residence arrangements are that there may be some need for some change as to contact in the future and contact is a matter that does seem to need to be reviewed from time to time if the parties cannot agree. There is a level of hostility between the parties which is a matter of concern.
There are no other facts or circumstances which should be considered.
Where does the Court go from here? Mr Allen for the respondent set out in his submissions a history of the parties, made it quite clear that his client the mother had been the primary carer of the children throughout their lives, and indeed in the family report the children have been described as happy.
The orders that are sought to be changed are in fact orders that were made by consent on 4 May 2001. The father in fact did not take action to vary that situation until April of 2002. Mr Allen points out to the Court that whilst Mr O has a criminal record that so to has the father, in fact he referred to an assault on the mother at the time of separation as a hideous assault. Mr Allen did point out to the Court that Mr O, whatever criticisms could be made of his past behaviour, is now acting responsibly and turning his life around.
Mr Allen did point out that the father's relationship with Ms H was a relatively short relationship in duration, that the father is actively building up this business that he has and is clearly spending a lot of time on that, which is hardly surprising.
There is of a course a question of whether or not the Court should make an order that would have siblings living in different residences. Mr Allen submitted this was not a situation that should occur. He strongly submitted the children ought not to be separated. That C has expressed this forthright wish to remain with the mother and that her two half sisters should remain living with her and with the mother and that in fact there should be order for contact between C and the applicant.
The applicant's view is that the situation has changed since the orders were made. He strongly criticises the mother's drinking and the use of drugs and her association with Mr O. He is strongly of the view that he and Ms H together can provide a stable relationship. A place where the children can live happily.
The case is unusual in that counsel for the children's representative has in fact suggested an order that the children should be separated. He suggested that C should remain living with the mother and that the younger children should remain living with the father.
It is an unusual case. None of these parties comes to the Court with an unblemished record in the field of parenting. I am satisfied that the applicant father and step-father has made serious efforts to get his life on track and that he has formed a good relationship with Ms H, who despite her own difficulties, and there have been difficulties relating to children of her previous marriage, has formed a positive relationship with him and indeed the children H and K seem to have a good view of her.
I am concerned about the mother's consumption of alcohol and the fact that whilst there is no evidence that would persuade me that she is involved in hard drugs, she still seems to have had in the recent past some involvement with marijuana. The instability of the mother's lifestyle is a matter of some concern and the rather bland excuses given by the mother's father did not to my mind carry a great deal of weight.
A matter that does carry a great deal of weight is that whatever the reasons for C's wishes to live with her mother and not live with the applicant, that is an established fact to which I should give a great deal of priority and I cannot see that an order requiring C to live with the applicant would offer a stable and happy situation as far as C is concerned.
I am persuaded however that the children H and K should reside with the father and that the mother should have generous contact with them. As I said it is a most unusual case where one separates siblings but the evidence seems to point to it.
There is one other point before I deal with the orders which is the injunctive order relating to Mr O. I cannot see that there is any benefit to be gained in continuing that order. Mr O has had a history but as Mr Allen quite strongly pointed out he has made efforts to turn his life around. He does have a relationship with Ms N and if the injunction were continued on a permanent basis that would impose such a severe restriction on that relationship that it would be almost doomed to failure and that would hardly be to the benefit of Ms N or for that matter to C. I am of a view that previous orders should be discharged including discharging the order relating to restrictions on Mr O.
I note that the Legal Aid Commission of New South Wales has waived any contribution by the applicant and the respondent to the costs of the children's representative.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 1 April 2003
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