Bault & Bault (No 2)
[2016] FamCA 1080
•19 December 2016
FAMILY COURT OF AUSTRALIA
| BAULT & BAULT (NO 2) | [2016] FamCA 1080 |
| FAMILY LAW – PROPERTY – where overwhelming initial contribution by husband – where wife seriously assaulted by husband – where husband sentenced to period of imprisonment and then deported from Australia – where wife obtains significant civil verdict for damages for assault – where husband expends funds on defending the criminal and civil proceedings – where husband fails to explain expenditure of cash funds available to him – where preliminary distributions to both parties – where appropriate that wife receive further cash adjustment. |
| Family Law Act 1975 (Cth) ss 75, 79 |
| Bevan & Bevan [2014] FamCAFC 19. Chapman & Chapman [2014] FamCAFC 91. Dickons & Dickons [2012] FamCAFC 154 In the Marriage of Harris (1991) 104 FLR 458 Pierce & Pierce [1998] FamCA 74 Russell & Russell (1999) FLC 92-877. Scott & Danton [2014] FamCAFC 203. Stanford v Stanford [2012] HCA 52. Teal & Teal [2010] FamCAFC 120. |
| APPLICANT: | Ms Bault |
| RESPONDENT: | Mr Bault |
| FILE NUMBER: | PAC | 3333 | of | 2012 |
| DATE DELIVERED: | 19 December 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 21 and 22 November 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Givney |
| SOLICITOR FOR THE APPLICANT: | Shepherds The Family Law Specialists |
| COUNSEL FOR THE RESPONDENT: | Mr Gould |
| SOLICITOR FOR THE RESPONDENT: | Mills Oakley Lawyers |
Orders
By consent:
That the husband within 21 days of written request by the wife sign all documents which might be necessary to
(a)cause the husband to resign as a member of the Bault Superannuation Fund;
(b)cause the husband to resign any office held by him in the fund including trustee or director of the trustee company of the fund;
(b)transfer any shares held by the husband in the trustee company of the fund.
That a Registrar of the Family Court of Australia be appointed to sign any document pursuant to section 106A of the Family Law Act 1975 which the husband fails to sign pursuant to these orders.
It is further ordered:
That the husband and wife do all necessary things and sign all necessary documents to authorise and direct that the wife be paid from the remaining proceeds of sale of the home at Suburb C the sum of $346,717 within 14 days from the date of these orders and this order shall be sufficient authority for such sum to be paid to the wife.
That the husband and wife do all necessary things and sign all necessary documents to authorise and direct that the then remaining balance of proceeds of sale of the home at Suburb C be paid in the following manner and priority:
(a)as to the sum of $150,000 to remain held in trust for the husband and wife pending assessment of the wife’s costs in respect to the District Court civil proceedings and that upon completion of that assessment the costs as assessed thereafter forthwith be paid to the wife or as she may otherwise direct in writing with the balance of the sum then remaining to be paid to the husband;
(b)as to the remaining balance of the said proceeds of sale to be paid to the husband or as he may otherwise direct in writing.
That the husband is hereby authorised to instruct his solicitor to pay to him or as he may direct that Solicitor in writing the sum of $71,377 presently held by the solicitor in his trust account for the husband.
That the wife do all necessary things so as to cause within 14 days from the date of these orders the following items of personalty comprising part of the remaining contents from the home at Suburb C to be delivered to the husband’s solicitors in good order and condition:
Glass jug shape vase
Central Persian rug
Australian landscape painting
Pottery moon flask
China Tea Service
Dutch School Painting
Two gilt framed colour prints
14ct two colour gold leaf ring
Emerald and Gold flower dress ring
14ct two colour gold necklace
Sapphire and gold dress ring
That otherwise the wife be declared solely entitled to the remaining personalty and contents from the former home at Suburb C.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bault & Bault has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 3333 of 2012
| Ms Bault |
Applicant
And
| Mr Bault |
Respondent
REASONS FOR JUDGMENT
As a consequence of an assault on the wife on 29 August 2012 the husband was charged with attempted murder and eventually pleaded guilty to assault occasioning grievous bodily harm. On 23 April 2014 the husband was sentenced to a period of seven years imprisonment with a non-parole period of three years and six months. The husband was released in 2016 and taken into Immigrations detention and thereafter deported. He presently resides in Europe.
On 15 December 2015 in the District Court of New South Wales a verdict of $406,562.80 was awarded to the wife in relation to damages for injury suffered by her when assaulted by the husband on 29 August 2012. The husband was also ordered to pay the wife’s costs.
As a consequence of a previous assault on the wife in June 2012 the husband in separate criminal proceedings on 21 August 2012 was convicted of assault on the wife, fined $500, ordered to pay court costs of $83 and directed to enter into a good behaviour bond for a period of 12 months. Further, on the same day, an Apprehended Domestic Violence Order was made for the protection of the wife.
The wife commenced proceedings for property settlement by application filed on 3 August 2012. In the present application, filed 7 December 2015, the wife seeks orders for property settlement that subject to the husband’s obligation to pay to the wife damages and costs in respect to the District Court of New South Wales proceedings the asset pool be divided equally.
The husband seeks orders that relevantly provide for:
a)the payment to him of available funds from the sale of the Suburb C home ($1,076,909);
b)the payment to him by the wife of such sum as would affect an 80/20 per cent division of property in his favour;
c)a split of $212,500 from the wife’s super to the husband (this was later resolved in that the parties agreed that the wife would retain her super as part of her property entitlement);
d)the wife provide to the husband certain items of personalty.
Context
The husband is presently 81 years of age. The wife is nearly 63 years of age.
The husband and wife married in 1997 at which time cohabitation commenced. The husband was then aged 62 and the wife 44.
There are no children of the parties’ relationship but the wife has three children from her previous marriage, Mr D, Mr E and Mr F. The children resided with the husband and wife in the Suburb C property from the date of marriage until the date that they variously vacated the property in 1998, 1999 and then 2005, all within six years or so of the marriage.
The husband and wife separated on 25 June 2012 in circumstances where the husband assaulted the wife as referred to above. The wife during the cohabitation was the subject of other acts of family violence perpetrated by the husband. In 2006 he was convicted of assaulting her but cohabitation continued. It was as a consequence of the later assault in June 2012, referred to above that separation finally occurred.
The wife had remained in occupation of that home over the period since separation until its recent sale, a total of about four and a half years to trial. The wife was required pursuant to interim orders that granted her sole use and occupation of the home, to maintain the home in a good state of repair and to maintain the gardens and lawns in a neat and tidy presentation.
The parties were divorced on 21 December 2013.
Background
At the commencement of the parties’ cohabitation the husband had the following assets:
a)Property at B Street, Suburb C unencumbered;
b)Savings of about $2 million;
c)A motor vehicle; and
d)Contents in his home at Suburb C.
The wife had no assets of any significance. In oral evidence she asserted that she had some furniture, a car and some savings of about $20,000.
She did not pursue a claim for any property adjustment arising from her previous marriage.
During the marriage the wife did not work and she received no financial support for her three children that formed part of the parties’ household. All of the living expenses for the parties and the wife’s three children whilst in the household were paid for by the husband who provided his home for the wife’s children until they moved on.
The husband concedes that during the marriage the wife was primarily responsible for homemaker and domestic duties.
The wife’s financial contribution is an inheritance of about $134,000 in 2005. She gives no evidence as to where or how those funds were applied.
The husband asserts that in about April 2003 he loaned to the wife’s son Mr E $235,000 to facilitate the purchase of a property at G Street, H Town. The husband further asserts that in May 2010 he advanced to Mr F and his wife Ms J $337,028. Those loans were an issue in these proceedings with both sons joined as respondents. On 21 November 2016 the issues as to the loans to the wife’s sons were resolved with the sons ordered to repay to the husband a total of $295,000 in respect to outstanding loans. They were thereupon removed as parties to these proceedings. It is common ground that the funds have been repaid as ordered.
In July 2007 the husband funded the purchase of a home unit property at M Street, Suburb L in the name of the wife’s son and his wife for $720,000. This property was sold later.
In July 2008 the husband funded the purchase of a home unit property at Suburb L for $710,000 in the joint names of him and the wife. This property was later sold in April 2009 for $735,000.
In 2009 the husband deposited from his own funds $450,000 to the Bault Superannuation Fund on behalf of the wife. The trustee of that fund is I Pty Ltd. The husband has a nil member balance in this fund. The wife’s benefit had accrued by September 2012 to $514,281.
It appears that the husband over the initial years of cohabitation had cash funds available to him and applied those funds as follows:
Loans to wife’s sons about: $ 572,000
Purchase of home unit properties $1,430,000
These sums are indicative of the husband having cash funds at cohabitation as asserted by him.
After sale of the home unit properties he paid to the Bault Superannuation Fund $450,000.
Otherwise, the husband’s capital was expended during cohabitation on day to day living and other expenses including payment to the wife of “housekeeping” each week, significant overseas holidays, purchase of motor vehicles, purchase of jewellery and other personal effects.
Separation: Orders of 13 September 2012 and thereafter
At the time of separation the husband says he withdrew unknown funds from his ABN AMRO Bank account in Europe. He asserts that he gambled those funds. Documents reveal he withdrew a total of $10,200 from May to July 2012.
In August 2012 the wife commenced proceedings after she became aware that the husband had withdrawn a total of $771,420 from his bank accounts. He withdrew $300,000 from his Bank of Queensland account in July 2012 and $446,020 from his Suncorp account in the same month.
He says he gave these funds in cash to a friend. He took back some of the funds which he paid to his solicitors trust account. The husband paid into his solicitor’s trust account on 12 November 2012 $599,000 he had got back from his friend. The application of the balance of $172,420 remains unclear.
There is a further issue as to the disposition or otherwise of the balance that should be remaining in the husband’s solicitor’s trust account after distributions totalling $440,000 referred to below. There should have been $159,000 after the October 2015 distributions whereas the current balance is $71,377. A difference of $87,623.
It appears some may have been paid for the husband’s legal fees for these proceedings and his criminal matters.
On 13 September 2012 interim orders were made for the wife to have, pending further order, sole use and occupation of the Suburb C property.
On 21 September 2012 orders were made, inter alia, that the wife be entitled to sell three specified Australian landscape paintings and the husband’s car in her possession and retain the proceeds of sale. At the time of trial she has not done so, the order for sale being stayed on 8 June 2016, with both parties now seeking one or other of the paintings.
Subsequently, orders were made on 18 February 2013, 21 April 2015 and 8 October 2015 permitting release to the parties of funds set out below:
18 February 2013 Wife $200,000 (Bault Superannuation)
Husband $200,000
21 April 2015 Wife $ 60,000
Husband $ 60,000
8 October 2015 Wife $ 60,000
Husband $ 60,000
The wife has only drawn part of superannuation as discussed below.
The wife presently has drawn $119,000 from her superannuation entitlement of which $68,100 has been paid in regard to legal fees with the balance applied for living and other expenses over the four years since separation.
In early 2016 the Suburb C property was sold and after sale costs, agents commission, payment of $200,000 to the husband and payment to the wife of her District Court verdict plus interest, the sum of $1,076,908 remains in trust for the parties.
The wife now resides in rental accommodation with one of her sons who contributes to rent and living expenses. The wife, now aged 63, may be entitled to government benefits but she has not applied.
The approach to property
The approach to the determination of an application under s 79 of the Act is set out in Stanford v Stanford [2012] HCA 52 and further considered by the Full Court in Bevan & Bevan [2014] FamCAFC 19, Chapman & Chapman [2014] FamCAFC 91 and Scott & Danton [2014] FamCAFC 203.
The process ordinarily involves a staged process.
The Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order.
Such a consideration should not be guided by an assumption that the parties’ rights to or interests in property are or should be different from those that then exist. The question is whether those rights and interests should be altered.
There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4). The Court needs to conclude that it would be unjust or unfair to leave property rights intact under s 79(2) of the Act.
In many cases this requirement is readily satisfied where the parties are no longer in a marital or de facto relationship and, thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship.
In particular, such a circumstance arises where both parties seek property adjusting orders but are unable to agree as to same. Here both parties seek different orders as to the division of their property and indeed partial property adjustment orders have already been made. It is conceded by counsel for both parties that it is appropriate for the Court to make orders altering their present property interests. It is appropriate to do so.
The Court considers the contributions made by the parties as defined in s 79(4)(a) to (c) and must then consider s 79(4)(d) to (g) in particular the subjective considerations as to the parties by having regard to the provisions of s 75(2) in so far as they are relevant (s 79(4)(e)).
The Court can then consider the “justice and equity” of the actual orders to be made: Russell & Russell (1999) FLC 92-877; Teal & Teal [2010] FamCAFC 120, in the context of the Court’s obligation to make “appropriate orders” as provided for in s 79(1) of the Act.
The asset pool
The trial balance sheet (Exh “E”) as to property at the time of trial gradually evolved and became clear during evidence and final submissions.
It now comprises:
Joint Suburb C sale balance (incl. $1,076,908
Verdict funds paid to wife) $ 435,434
$1,512,342
Joint Solicitors Trust Account $ 71,377
Joint Remaining contents – Suburb C $ 28,615
Wife Jewellery/contents retained $ 23,126
Wife Proceeds contents auction $ 5,380
Wife Bault Superannuation $ 394,780
Wife Hesta Superannuation $ 13,865
Wife Japanese motor vehicle $ 5,000[1]
Wife Bank of Qld account $ 1,305
Husband Funds released: sale of home $ 200,000
Husband Repaid loan funds $ 295,000
Husband Contents $ 730
[1] Wife’s oral evidence as to Red Book value
As to the Joint Contents they, in part, comprise three Australian landscape paintings purchased by the husband:
The wife would like to retain two. The husband in his oral evidence seeks all three. Both parties had previously agreed to an order for sale with the wife to retain the proceeds. The paintings will be retained in specie as sought by the wife.
The husband sold two motor vehicles. Funds were applied in reduction of one of the wife’s sons debt and the otherwise expended asserts the husband on his living expenses post separation. The proceeds will not be included in the pool.
The parties agree that various funds that have been distributed or otherwise available to them are to be notionally included in the pool for adjustment purposes. These are:
Wife Funds (Order: 8.10.2015) $ 60,000
Wife Funds (21.4.2016) $ 60,000
Wife Superannuation withdrawal $ 68,100
Husband Funds (8.10.2015) $ 60,000
Husband Funds (21.4.2016) $ 60,000
Husband Funds (18.02.2013) $ 200,000
It is contended by the wife that the further sum of $172,420 unexplained by the husband (see [27] above) should be notionally included in the pool for adjustment. It is appropriate that those funds be brought to account and included notionally in the pool.
Otherwise, there is the unexplained missing balance (see [28] above) in the solicitor’s trust account of about $87,623. It is contended by the wife that such funds should also be brought to account. It is appropriate that they be included in the notional pool.
It is contended that the pool should include the benefit to the wife of the costs order against the husband made in the civil damages proceedings. Where such an order is to compensate her for her costs expended in those proceedings it is inappropriate that they be included in the pool for adjustment as it is similarly inappropriate that the husband’s liability, therefore, be included for the reasons referred to above as to his other costs expenditure.
The husband has received known distributions totalling $520,000 plus has had access to unexplained funds of $260,043, in all a total of about $780,043.
The husband has expended from funds released to him and otherwise unaccounted for by him about $465,000 on defending the criminal charges to which he eventually pleaded guilty and the wife’s personal injury claim. Otherwise it is to be inferred that he has expended considerable costs in relation to the current proceedings. These sums explain as to a substantial portion the application of funds by him. The expenditure by him on legal fees directly related to the result of his misconduct and these property proceedings should not diminish the asset pool with the effect that the wife would bear some portion of that expenditure.
Absent any explanation by the husband as to the application of funds received or unaccounted for by him particularly where he was in custody for more than three years post separation such funds should also be included in the pool for adjustment.
Thus the pool for adjustment purposes is as follows:
Joint Suburb C sale balance (incl. $1,076,908
Verdict funds paid to wife) $ 435,434
$1,512,342
Joint Solicitors Trust Account $ 71,377
Joint Remaining contents – Suburb C $ 28,615
Wife Jewellery/contents retained $ 23,126
Wife Proceeds contents auction $ 5,380
Wife Bault Superannuation $ 394,780
Wife Hesta Superannuation $ 13,865
Wife Japanese motor vehicle $ 5,000
Wife Bank of Qld account $ 1,305
Husband Funds released: sale of home $ 200,000
Husband Repaid loan funds $ 295,000
Husband Contents $ 730
Wife Funds (Order: 8.10.2015) $ 60,000
Wife Funds (21.4.2016) $ 60,000
Wife Superannuation withdrawal $ 68,100
Husband Funds (8.10.2015) $ 60,000
Husband Funds (21.4.2016) $ 60,000
Husband Funds (18.02.2013) $ 200,000
Husband Unexplained funds $ 172,420
Husband Unexplained trust shortfall $ 87,623
$3,319,663
Otherwise, the husband has an outstanding liability for the wife’s costs of the civil proceedings that are claimed in the sum of $144,977 but subject to assessment.
Contributions
It is contended by the wife that by reason of a cohabitation of 17 years during which she substantially undertook the household and domestic tasks in circumstances where she was subject at times to the husband’s adverse behaviour, culminating in his conviction for assault in June 2012 shortly before separation, that her contributions should be assessed in the range of 32.5 per cent- to 35 per cent. This, it is contended, is further supported by the evidence that the husband has failed to properly account for monies available to him.
It is conceded by the wife that the husband in effect brought in all of the assets at cohabitation, save for modest assets introduced by the wife. The wife asserts that she did not pursue a property settlement with her first husband by reason of the husband’s representations to her. Yet there is no evidence to suggest that she had such a claim to pursue.
The husband contended that contributions should favour him as to 85 per cent/15 per cent.
In In theMarriage of Harris (1991) 104 FLR 458 the Full Court said in assessing contributions:
The task of the court in proceedings under section 79 is not akin to an accounting exercise. To borrow a phrase used by McClelland J in Davey v Lee (1990) DFC 95-084; (1990) 13 Fam LR 688 at 689 in relation to section 20 of the De Facto Relationships Act 1984 (NSW):
…the Court is required to make a holistic value judgment in the exercise of a discretionary power of a very general kind.
In Pierce & Pierce [1998] FamCA 74 the Full Court at 85,881:
In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife.
More recently in Dickons & Dickons [2012] FamCAFC 154, the Full Court said:
23. We wish also to refer to the approach of the Federal Magistrate in attributing percentages to differing periods within the relationship, or types of contribution made. There is in our view little to be gained, and much to be said against, approaching the task of assessing contributions by attaching percentages to components of it. (The same, it might be said, applies to attributing a percentage to each of the relevant s 75(2) factors).
24. There can be little doubt that the classification of contributions by reference to terms such as “initial contributions”, “contributions during the relationship”, and “post-separation contributions”, can be helpful as a convenient means of giving coherent expression to the evidence in a s 79 case and to giving coherence to the nature, form and extent of the parties’ respective contributions. However, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.
25. Doing so is also consistent with the demands of authority that the ultimate assessment of contributions should be made without “…giving over-zealous attention to the ascertainment of the parties’ contributions…” (Norbis v Norbis (1986) 161 CLR 513 at 524) and the well-established recognition in the authorities (acknowledged specifically by her Honour in this case) that the process required of the Court by s 79 is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise.
26. The necessarily imprecise “wide discretion” inherent in what is required by the section is made no more precise or coherent by attributing percentage figures to arbitrary time frames or categorisations of contributions within the relationship. Indeed, we consider that doing so is contrary to the holistic analysis required by the section and, in the usual course of events, should be avoided.
It is common ground that the husband’s initial contribution at cohabitation was overwhelming. He also provided accommodation and financial support for the wife’s sons for a limited period. Otherwise, the wife’s non-financial contributions must be seen through the lens of her homemaker contributions to the household of herself and the husband over a period of years. He provided from his capital income to support the whole family unit and the lifestyle of he and the wife over the period of cohabitation.
The wife had the benefit of the occupation of his unencumbered home for four years after separation, although with the obligation that she maintain it.
The wife, it is agreed, received a modest inheritance, yet there is no evidence as to the application of those funds. It must be cautiously inferred that they went into the household over the years since receipt in 2005.
Overall, it is assessed that the contributions favour the husband as to 70 per cent and the wife 30 per cent.
Section 75(2) factors as relevant
The husband’s counsel contended that, save for the resultant financial disparity that may depend on findings as to contribution entitlement if in the lower range, there were no relevant s75(2) considerations. The wife’s counsel made a similar contention.
The husband is aged 81 and now resides in Europe having been deported from Australia. The wife is 63 years of age. The wife asserts some health issues but same were considered in the context of her civil claim for damages in respect to which she was awarded monetary compensation.
Both parties are not in employment. It is not expected that either will enter into employment in the future.
Their assets and resources including superannuation are discussed in detail above. The wife has received her verdict monies plus interest and will be entitled to her costs of the civil proceedings payable by the husband when assessed.
The wife will have commitments to support herself from her capital and superannuation as will the husband from his available capital.
The effect of a contribution finding as above will mean that the wife will be entitled by way of property to a sum of $995,898 or $996,000 in round figures.
This creates a disparity between the parties of about $1.372m.
She has or has had the following:
Wife Jewellery/contents retained $ 23,126
Wife Proceeds contents auction $ 5,380
Wife Bault Superannuation $ 394,780
Wife Hesta Superannuation $ 13,865
Wife Japanese motor vehicle $ 5,000
Wife Bank of Qld account $ 1,305
Wife Funds (Order: 8.10.2015) $ 60,000
Wife Funds (21.4.2016) $ 60,000
Wife Superannuation withdrawal $ 68,100
$ 631,556
Given [76] above, in round figures an adjustment of $364,342 is required.
In such circumstances it is not appropriate for there to be any further adjustment by reason of the relevant s75(2) considerations.
Discussion
The wife is to receive property to the value of a further $364,342.
This will comprise:
Remaining contents – Suburb C
having a value of: $28,615
less the following items to be retained
by the husband (as identified in Exh “F”):
Glass jug shape vase $ 60
Central Persian rug $ 2,200
Australian landscape painting $ 7,500
Pottery moon flask $ 120
China Tea Service $ 85
Dutch School Painting $ 400
Two gilt framed colour prints $ 20
14ct two colour gold leaf ring $ 90
Emerald and Gold flower dress ring $ 120
14ct two colour gold necklace $ 320
Sapphire and gold dress ring $ 75
$10,990
Balance: $17,625
Otherwise, the wife is then to receive a cash adjustment of $346,717.
Such orders are just and equitable in the circumstances of this matter.
Orders implementing the above will be made accordingly.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 19 December 2016.
Associate:
Date: 16 December 2016
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Civil Procedure
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