CHALK & CAMDEN (No.2)
[2008] FMCAfam 748
•23 May, 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHALK & CAMDEN (No.2) | [2008] FMCAfam 748 |
| FAMILY LAW – Contravention – no reasonable excuse. |
| Family Law Act1975, ss.60CC, 60DAA, 70NEA, 70NEB |
| Sandler v Kerrington [2007] FamCA 479 In the marriage of Rice and Asplund (1978) 6 Fam LR 570 |
| Applicant: | MR CHALK |
| Respondent: | MS CAMDEN |
| File number: | BRC 3435 of 2008 |
| Judgment of: | Jarrett FM |
| Hearing date: | 23 May, 2008 |
| Date of last submission: | 23 May, 2008 |
| Delivered at: | Brisbane |
| Delivered on: | 23 May, 2008 |
REPRESENTATION
| Mr Chalk appears on his own behalf |
| Solicitors for the Respondent: | Barry & Nilsson |
ORDERS
That the orders made in the Family Court of Australia at Sydney on
25 June 2004be varied as follows by inserting the following:
“2A That the children [X] born [in] 1997 and [Y] born [in] 2000 return to [S] School for the commencement of Semester 2 or Term 3 however so described by that institution following the mid year holiday period 2008.
2B That the children shall thereafter remain at the said school and not be removed there from without the written consent of both parties.”
That pursuant to section 70NEB of the Family Law Act1975, the mother enter into a bond.
That within seven (7) days of the date of this order both parties contact the Relationships Australia (or their nominee) on telephone number 1300 364 277 for intake in the “Keeping Up Contact” Program or such other Parenting Orders Program as recommended by that organisation.
That the parties shall comply with any reasonable direction of the Program Co-ordinator and in particular:
(a)attend as requested for the purposes of assessment as to whether they are suitable for participation in the program;
(b)advise the Co-ordinator of their contact telephone number and advise the Co-ordinator of any change in that number;
(c)attend and participate in the program as requested including attending referrals to treating health professionals as recommended by the Program Co-ordinator.
That both parties shall complete the recommended course within four (4) months of the date of this order.
That in the event that either party refuses or fails to attend the program or any part thereof without reasonable excuse or refuses to accept a reasonable direction of the Co-ordinator, then the matter may be re-listed by either party on the giving of twenty four (24) notice.
IT IS NOTED that publication of this judgment under the pseudonym Chalk & Camden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 3435 of 2008
| MR CHALK |
Applicant
And
| MS CAMDEN |
Respondent
REASONS FOR JUDGMENT
Ex tempore
This is the continuation of an application for contravention that commenced before me earlier this week, wherein I found that the mother had contravened some orders as alleged by the father without reasonable excuse. The contravention alleged was that she did not exercise parental responsibility with him jointly in that she made a decision to change the schools of their two children and did not consult with him or obtain his consent to it.
The issue was whether the father had, indeed, either consented or acquiesced to the course that the mother had adopted. It was her case that his consent or acquiescence could be inferred from some forms that he had signed and which, on their face, were applications for admission to entry to The [P] School. The father's case was that although he had signed at least one of those forms, he denied signing the second. He signed the first, he says, on the basis and understanding represented to him by the mother that the form was a form of a reservation of a place at the school and would not be used by her to enrol the child until some time in the future and after the parties discussed and agreed on that enrolment. In summary, I accepted the husband's evidence and rejected that of the mother and found that the contravention had been proved and that there was no reasonable excuse for the contravention.
What now falls to be considered are the orders that should be made consequent upon that decision. There are two aspects to that. The first is whether the court should exercise any of the Court's powers provided for in Div.13A of Pt.VII of the Act consequent upon the findings of contravention. Secondly, in the circumstances of this case, whether the Court ought to exercise the power that it has under s.70NBA of the Act to vary the parenting order that is presently extant between the parties.
I will deal with the first matter. The first matter requires a consideration of whether I should deal with the matter under Subdivision E of Div.13A Pt.7 or Subdivision F. I should say that before I proceed any further the findings that I made on 20 May, 2008 in this matter were findings which I expressed, at the time, to be findings made beyond reasonable doubt and any findings that I now make are findings that I make beyond reasonable doubt.
Subdivision E applies to matters where a primary order has been made and a Court having jurisdiction under the Act is satisfied that a person has committed a contravention of the primary order and that person does not prove that they had a reasonable excuse for the contravention and either ss.70NEA (2) or 70NEA(3) applies.
Section 70NEA(2) provides that that subsection will apply if no Court has previously made an order imposing a sanction or taken an action in respect of a contravention by the person of the primary order. That is, it seems, the case here. Section 70NEA(3) provides that for the purposes of s.70NEA(1) that subsection will apply if the Court has previously made an order imposing a sanction or taken an action in respect of the contravention by a person of the primary order or under s.70NEB(1)(c) during the proceedings and the Court is, in dealing with the current contravention, satisfied that it is more appropriate that the contravention be dealt with under Subdivision E.
Subdivision E does not apply in cases where the Court is satisfied that the person who contravened a primary order has behaved in a way that showed a serious disregard for his or her obligations under the primary order: see s.70NEA(4).
Subdivision F is described as applying to contraventions without reasonable excuse and which might be seen as more serious contraventions. Again, it is necessary for there to have been a primary order in place and for a Court having jurisdiction under the Act to be satisfied that a person has contravened that order without reasonable excuse and one of two possible scenarios apply. These are found in s.70NFA(2) and (3).
Section 70NFA(4) provides that the subdivision does not apply if the Court dealing with the current contravention is satisfied that it is more appropriate for that contravention to be dealt with under subdivision E.
I am satisfied, as I say, beyond a reasonable doubt, that the person who has been found to have contravened the order, the mother in this case, has behaved in such a way as to demonstrate a serious disregard for her obligations under the primary order. I make that finding against these facts.
There was an application before this Court that was dealt with by another Federal Magistrate by a judgment that was delivered on 5 July, 2006 in respect of which the mother agitated an application for a change of schooling. The orders that she sought at that stage were that the children should be able to attend a place called [O] College with [X] to begin in grade 6, 7 and 8 and [Y] to begin in grades 3, 4 or 5 dependent upon the availability of places and finance.
So much appears from the reasons of Lindsay FM in that judgment. History records, of course, that that judgment was the subject of a successful appeal and the orders that his Honour made were set aside. The matter was remitted to his Honour for further hearing and in a second judgment delivered on 14 June, 2007, his Honour appears to have considered the mother's application again. It was the same application, at least according to his Honour's reasons. The application was, again, refused.
It is important to note that at the time those orders were delivered, that is on 14 June, 2007, the circumstances which have given rise to the findings in this case of a contravention without reasonable excuse had occurred and those circumstances were known to Lindsay FM. So much appears from his reasons for judgment delivered on 14 June, 2007. According to the mother's affidavit, that judgment itself is the subject of another appeal and the Full Court remains reserved in respect of its judgment on that appeal. It is not clear whether the schooling aspect of the matter is the subject of part of the appeal.
The first appeal was dealt with by Warnick J sitting as the Full Court of the Family Court of Australia and his judgment was delivered on
17 October, 2006. The appeal was allowed. Lindsay FM's orders, or at least pars.1, 3, 4 and 5 of those made on 5 July, 2006 were set aside.
I note that Warnick J set aside the orders that Lindsay FM made on the father's application. The applications of the father upon which the orders that were set aside were made, were remitted to Lindsay FM for determination according to law on the facts as found by him in accordance with his reasons for judgment delivered on 5 July, 2006.
The order Lindsay FM made on 5 July, 2006 insofar as it relates to the mother's application for orders in relation to the children's schooling and the dismissal of that application were not affected by the decision on the first appeal. And so, that order has, at all times, remained operative. It is against that background that I find that the contravention and the mother's behaviour is such as to demonstrate that there is a serious disregard of her obligations under the orders. For that reason, I propose to deal with the matter under Subdivision F of Div.13A Pt.VII of the Act.
Section 70NFB sets out powers of the Court generally. Section 70NFB(1) provides that if Subdivision F applies, the Court must in relation to the person who committed the current contravention:
a)Make an order under s.70NFB(2)(g), that is an order that the person who committed the current contravention pay all of the costs of another party or other parties to the proceedings under the division; and
b)if the Court makes an order under s.70NFB(2)(g) to consider making another order under s.70NFB(2) that the Court considers in the circumstances to be the most appropriate of the orders under that subsection; and
c)if the Court does not make an order under s.70NFB(2)(g), make at least one order under s.70NFB(2), being the order or orders that the Court considers to be most appropriate of the orders under s.70NFB(2)in the circumstances.
The scheme, therefore, of s.70NFB(1) seems to be that the Court must make an order either under s.70NFB(2)(g) and at the Court's discretion and one of the orders under s.70NFB(2). If the Court does not make an order under s.70NFB(2)(g) then the Court must make an order under s.70NFB(2), whichever it thinks is the most appropriate. There is no application by the father under s.70NFB(2)(g), that is for costs and that is not surprising given that he is not legally represented in these proceedings. I do not make an order under s.70NFB(2)(g).
By force of s.70NFB(1)(c) I must, it seems to me, make at least one of the orders under s.70NFB(2). Section 70NFB(2) provides that the orders that are available to be made by the Court are:
a)a community service order;
b)an order requiring the person to enter into a bond in accordance with s.70NFE;
c)to make a further parenting order that compensates a person for time the person did not spend with the child as a result of the contravention;
d)to fine the person not more than 60 penalty units;
e)subject to s.70NFB(7) to impose a sentence of imprisonment on the person in accordance with s.70NFG;
f)to make a further order pursuant to s.70NFB(2)(f) requiring the person who committed the current contravention to compensate the person pursuant to s.70NFB(2)(f)(ii) for some or all of the expenses referred to in that section;
g)to make an order that the person who committed the current contravention pay some of the costs of another party or the other parties to the proceedings under the Division.
As I have already indicated, the question of costs does not arise. This is not a case about the father not spending time with the child and so an order for compensatory time is not appropriate. Nor is there a question of him having incurred expenses as such by reason of the contravention.
That leaves for consideration either an order for community service, an order requiring the mother to enter into a bond, an order for a fine or a sentence of imprisonment.
There are no arrangements between the State of Queensland and the Commonwealth that would enable me to make a community service order. Community service is not appropriate or available in this case. The issue seems to be whether I ought imprison the mother or that I ask her to enter into a bond or whether I ought to impose a fine. There is no material before me dealing with her financial circumstances and so I cannot make a finding that, in the circumstances of this case, a fine would have any particular effect. I have no evidence that she could pay a fine.
I do not think that a sentence of imprisonment is appropriate either. A sentence of imprisonment should be seen as a sentence of last resort. This is the first time, at least as far as the material before me permits me to make finding, that the mother has been found to have contravened the orders without reasonable excuse. A sentence of imprisonment is not appropriate.
But it seems to me that a bond is appropriate. I must impose an order. A fine is not appropriate and imprisonment is not appropriate. The other orders to which I have referred are also not appropriate or unavailable in the circumstances of this case. A bond will secure compliance with the orders, with a minimum of imposition on the mother.
In my view, it is appropriate to ask the mother to enter into a bond to be of good behaviour for a period of two years with the bond to be conditioned on her complying with the current parenting orders between the parties as they might be, from time to time, varied.
RECORDED : NOT TRANSCRIBED
I also propose to make an order that both parties, not just the one, attend a post separation parenting course and complete that course within four months of today. I have no power and so therefore cannot make an order that the mother's current partner attend that course.
The second aspect of the matter to be dealt with is whether I ought to vary the current parenting orders pursuant to s.70NBA of the Act. As Mr Cooper pointed out on Wednesday, a variation of the current parenting orders is itself a parenting order. Warnick J in a decision called Sandler v Kerrington [2007] FamCA 479 made that point. His Honour pointed out in very clear terms that although s.70NBA of the Act was introduced to overcome the previous difficulties attendant upon contravention applications of being unable to vary parenting orders where variations were called for, the introduction of that section does not obviate the Court from considering all of the matters that are ordinarily considered on a parenting application.
His Honour said at paras.43 and 44 of Sandler v Kerrington [2007] FamCA 479:
Prior to the 2006 amendments from time to time matters come before the Court by way of contravention applications and in the hearing of those applications it became apparent that the alleged contravention substantially arose because of some ambiguity in an order or because some of the orders terms, in particular for matters such as changeover arrangements or other 'mechanics' of contact provisions were the cause of the difficulty. Often there was no concurrent application for variation and, in any event, the general principle was that the Court should deal with the contravention application before dealing with any question of variation of the orders.
The introduction of s.70NBA overcomes these difficulties and it may be that in many circumstances amendment to an order can be made in a summary way, but that would be because of the nature of the issue, not the terms of the Act.
Further on his Honour makes it clear that s.60CA continues to apply and s.60CC has its usual role in parenting cases. Section 61DA also plays its role, as does the rule in In the marriage of Rice and Asplund(1978) 6 Fam LR 570. It is to that rule that I now turn.
There are final parenting orders in place between these parties. Before I make an order which varies those parenting orders I need to be satisfied that there has been a significant or material change in circumstances sufficient to warrant the revisiting of the welfare of these children since those orders were made.
There is a change in circumstances for these children. They have changed school. Originally they were attending [S] School, they now go to The [P] School. [X] went first and then [Y]. That is a significant change in circumstances, particularly in my view given the circumstances in which the change occurred, that is, against a background of two agitations of an application by the wife for a change in the parenting orders to permit the change of school - one before either child had gone to The [P] School and the second after [X] had gone to The [P] School - and in the face of the father's opposition to that move. In my view there is a significant or material change in circumstances.
Section 60CA, of course, requires the Court to make orders that are only in the best interests of these children. Section 60CC sets out how the Court works out what is in a child's best interests. Before I consider those matters I will mention briefly s.61DA. The Court, when making a parenting order, must presume that it is in the best interests of children for there to be equal shared parental responsibility. In this case there would be very little cavilling with the proposition that there should be an application of the presumption because the orders that are under consideration themselves provide for the parents to have joint parental responsibility.
One of the effects of applying the presumption is that it calls up for consideration the parenting regimes that are set out in s.65DAA(1) and (2) of the Act, but this case is not about where the children will live or how much time they will spend with each of their parents. And so in the context of the issues raised for consideration in this case it is not appropriate, in my view, to consider the matters raised for consideration by s.65DAA(1) or (2), notwithstanding that the presumption in s.61DA should apply.
The case also raises another interesting question about s.61DA. The terms of s.61DA require the Court to apply a presumption when making a parenting order if it is not otherwise satisfied that the presumption does not apply or, as a matter of discretion, should not apply, but s.61DA by its terms does not require the Court to make an order that there be equal shared parental responsibility, only that the Court must apply the presumption. And as I have indicated, an application of the presumption calls up the operation of s.65DAA(1) and (2).
I do not propose to make an order that there be equal shared parental responsibility. There are already orders in place that deal with questions of parental responsibility. I only remark that the presumption applies, there is nothing to suggest to the contrary, and that one of the consequences of applying the presumption, that is a consideration of s.65DAA(1) and (2), has been considered.
I turn then to the questions raised by s.60CC of the Act. Again, the issues in this case are of very narrow compass. There is nothing to be gained, it seems to me, by a seriatim consideration of each of the factors arising under s.60CC. The uncontroversial facts in this case are these. Until the mother changed [X]'s school and until she changed [Y]'s school the children were attending [S]. She says there were concerns about them attending there in that they were sometimes unhappy. She says that the children, and [X] in particular, had a good year last year, but this year is a more difficult year. She says that [Y] enjoys his time at that school.
She filed by leave this morning an affidavit setting out her concerns about removing the children from The [P] School and returning them to [S]. She points out that the children are involved, [X] in particular, in extracurricular activities at the school - music and sport - and that there would be very unfortunate effects for them if they were to have to return to [S].
In support of her case she also filed an affidavit by a person called
Ms C. She describes herself as the maternal aunt of the subject children. She [is qualified in the Education Industry]. I do not know where she lives. Her affidavit says that her address is care of Barry and Nilsson Lawyers. Her curriculum vitae attached to her affidavit gives a PO Box at [M]. She might live near where the children live, she might not. It is not clear whether she is the aunty to which [Y] referred to when he spoke with the family consultant on Wednesday.
But she purports to give in her affidavit lengthy evidence about a whole range of things, some of which could only have been appreciated by her through what others had told her or perhaps through personal observation, but the difficult way in which her evidence is expressed makes it impossible to tell which of her statements are statements made from her own observation, which statements are made from things that she has concluded from what others have told her and which are opinions formed by her upon some particular basis not otherwise described in the affidavit.
She sets out, for example, the following opinion:
To change [X] and [Y] from [P] now just when they are beginning to settle in I feel will be detrimental to their future learning. To go back to [S] School will be a shock, it will not be the same.
The basis upon which she would draw those conclusions is entirely unclear. Her evidence is of little probative value and I give it no weight.
In addition to the mother's evidence on this question of schooling is the father's case, not well-supported by evidence in his own affidavit material, that the children want to go back to [S].
On Tuesday after I concluded that the mother had contravened these orders without reasonable excuse I ordered that the children be brought to Court and that they consult with a family consultant. That occurred and on Tuesday afternoon a family consultant, Ms Peta Densmore, gave evidence about her interviews with the children. She said this:
I spoke to both boys individually in order to ensure that they didn't influence each other in their views and their wishes. I found that both boys presented neatly in their uniforms and were healthy. Both spoke freely to me and were articulate, matter of fact. [X] was particularly curious about things and wanted to know why I called you 'your Honour' and he gave me the impression that he had a strong interest in creative arts and historical issues. [X] is in grade 6 at [P] School at the moment and he said that he has an interest in religion. Although he didn't believe in it he found it very interesting. He plays the tuba and has an interest in the music lessons and he's in the gifted and talented classes at [P]. He also advised that he plays rugby union for the school on the weekends and that his class teacher was Mr B, who he gets on quite well with. I got the impression from [X] that [P] School is very much a sporting school, where his interests lie, more as I said earlier in the creative arts and music and history stuff. So he indicated to me that [S] school sort of catered more to those needs and he felt a more sense of belonging in [S] school. He indicated that he was advised about changing schools from [S] to [P] by his mother and his mother told him that he was changing the school because she thought that he was miserable at [S] and [X] didn't understand or sort of know where mum sort of got that impression from because he was quite happy at [S]. However, he was pleasantly surprised when he did start year 5 at [P]. He got on, you know, everything was fine, but this year he's found it to be different and he's not as happy at [P] and indicated that he would like to return to [S] on the basis that he has met the grade 6 teacher at [S] and he met the teacher because he finished early one day at [P], had half a day at school and asked his dad to go and play with his friends at [S]. And so he sought permission to go to the school and play and so while he was there he was talking to his friends and had a chance to meet the principal who would, I believe, was going to be his teacher if he was to return there. He indicated that at [P] he has no friends and that makes him feel bad and that's mainly because they have different interests to him. They are more into the sports, whereas he is not. There's no girls at [P] so therefore he's no one to annoy and he has friends at [S]. He has three great friends, he says, [names omitted] and would never get many opportunities to see them other than if he was to attend the [S] school. He indicated he didn't like [P] because it was - it means getting up earlier to go to school, it's like about a 45 minute drive and he preferred [S] because it was less uptight and he referred - - -
I then interrupted the witness to clarify whether she meant [S] or some other place and she corrected herself and said:
Sorry, [S] school because he was - it was less uptight, it was more relaxed and that was evident by the school uniform. At the kids' current school it's very formal, at [S] it's less formal and they have shorter school days, have a bigger lunch break and with less distance to drive. He indicated if he had to stay at [P] he'd be very annoyed because he really wants to go back to [S] and he felt that the transition back, going halfway through a school year, would be quite easy because he fits in well, he knows a lot of people there and his friends are looking forward to him returning.
In relation to [Y] gave this evidence:
In relation to [Y] he indicated that he's in year 3 and his favourite interests at school are reading and he likes playing and he gets - because everything else at school is boring, which is probably very on par with his age. He has about five or six friends at his current school, but he was really annoyed about changing to [P]. He indicated that he liked year 3 at [P] better than year 2, but overall he preferred [S] better than [P] and he has a best friend at [S], [Z], who he didn't really get to see unless he was to attend that school. He told me that his mum told him about changing schools and the reason for that was because it would be easier for [X] and that his mum forced him to change. He told her that he didn't want to go but he had to. And I asked him the question if he had three wishes and was able to, you know, or had a wish of where he'd like to go and he said he'd like to go back to [S] because they didn't have as much boring stuff and that maths - he prefers the maths at [S] because he has the same teacher who teaches maths and the whole class and it's not as long, whereas at [P] I'm led to believe he has a different teacher who teaches maths and is quite - like an hour and a half, so it's much longer. He also told me that he has more time at home if he goes to [S] and he gets to go to his aunty's farm in the morning and after school and he doesn't like having to get up early because to go to [P] he has to get up about 7.30 whereas at [S] he goes - he leaves to go to school about, you know, 10 to 9 and that he - everyone likes him at [S] whereas he doesn't get on well with everybody - like no one doesn't like him at [P], but it's easier to approach friends and approach people and go 'Can I play with you?' at [S] than at [P]. And once again, like his brother, he indicated that he shared a similar interest with his friends and the kids at [S] in comparison to [P] where they're more interested in playing tag and running around and whilst he has an interest in that once he gets bored of that he's got nothing to do because he's got no one else to hang out with. He told me that if he had to stay at [P] he'd feel bad because he didn't like it there.
The mother through her solicitor applied to cross-examine the witness and I permitted the cross-examination, the father did not cross-examine the witness.
In the mother's affidavit filed by leave on 20 May, 2008 she says in para.5(e) that she rejected the applicant's contentions that the children were not happy and achieving at The [P] School. That evidence, that the children were not happy at The [P] School, seems inconsistent with the evidence from Ms Densmore of what the children told her. But perhaps more importantly is also inconsistent with the evidence that the mother herself used in her affidavit filed by leave this morning before me.
At para.26 of her affidavit she says this:
I am aware that the boys currently say they wish to return to [S] school, however, I am not convinced that this is the best thing for them. They both think it will be better than it was when they were at the school. They think that they will be doing lots of art, that [X] will have access to a tuba and join the band, that it would be more fun than it was before. [X] appears to have forgotten how bored and sad he was at [S] school and he didn't want to go, even though his three best friends were there. [Y] thinks he'll be doing art in every lesson, although he will have the same teacher he had before.
Further, para.28:
I am concerned that the children will only be happy for a couple of weeks and then realise what they have given up. Unfortunately, the opportunity they have at [P] will by then be gone.
It was said in submissions that it is important to understand what it is that the children will be losing if they are removed from [P]. There is the question of the tuba and tuba lessons, there is the question of playing rugby and it was suggested that the children have not thought about those issues when expressing their desire to return to [S].
But having regard to the evidence of Ms Densmore it is clear that when [X] spoke to her he mentioned all of those things. He mentioned his tuba, he mentioned his interest in music and he mentioned his participation in the gifted and talented classes at [P]. He also mentioned that he plays rugby union for the schools on the weekends and that he got on well with his current teacher.
The issue, therefore, seems to be summarised by saying that I need to balance up the evidence of the children's wishes given by Ms Densmore against the mother's concerns for the children if they are removed from The [P] School. Section 60CC(3)(m), of course, permits me to take into account any other fact or circumstance that the Court thinks is relevant and, in my view, it is relevant to take into account as part and parcel of the consideration of the s.60CC factors the circumstances in which the children have come to be at [P] in the first place and the fact that they have come to be there, as I have already found, against the wishes of the father and in breach of a Court order.
It may be disruptive for these children to return to [S] School. It may well be that there are better facilities at [P], although there is no evidence before me about the facilities at [S] School other than the mother's assertions in her affidavit about that.
It was said in submissions that much of the mother's affidavit consisted of hearsay, particularly the statements from the teachers, but there was no application to adjourn these proceedings to put on better evidence.
Having regard to the evidence of the wishes given by Ms Densmore as to the wishes of these children, having regard to the mother's evidence that really her concern is that the children should not be moved because of the things that they would be giving up at [P] rather than there being any particular and identifiable detriment to them returning to [S] School and having regard to the fact that on my findings made on Wednesday they went to the [P] school as a result of the unilateral action of the mother I order:
ORDER DELIVERED
It would be inappropriate that they return with this current term so close to its conclusion.
ORDER DELIVERED
RECORDED : NOT TRANSCRIBED
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Acting Associate: E Crutchfield
Date: 30 July, 2008
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