Egan & Egan
[2017] FamCA 170
•16 March 2017
FAMILY COURT OF AUSTRALIA
| EGAN & EGAN | [2017] FamCA 170 |
| FAMILY LAW - CHILDREN – Where the father seeks mid-week time during school term – Where the mother resists an order for mid-week time – Where there is an order for equal shared parental responsibility – Where the provisions of ss 65DAA(2) are enlivened – What the word “consider” means – Whether the statement in Goode & Goode at [64] survives the statement by the High Court in Bondelmonte v Bondelmonte at [43] – Where it is proper to make an order for mid-week time. |
| Family Law Act 1975 (Cth) |
| Bondelmonte v Bondelmonte [2017] HCA 8 |
| APPLICANT: | Ms Egan |
| RESPONDENT: INDEPENDENT CHILDREN’S LAWYER: | Mr Egan Legal Aid NSW |
| FILE NUMBER: | SYC | 6451 | of | 2014 |
| DATE DELIVERED: | 16 March 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 3 March 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Eldershaw |
| SOLICITOR FOR THE APPLICANT: | K D Holmes Solicitors |
| COUNSEL FOR THE RESPONDENT: | Ms Petrie |
| SOLICITOR FOR THE RESPONDENT: | Photios Vouroudis & Co |
SOLICITOR FOR THE INDEPENDENT
CHILDREN’S LAWYER: Legal Aid NSW
Orders
During New South Wales school terms, the children S Egan born
… 2004, H Egan born … 2006 and Y Egan born … 2008 spend time with the father from after school to 7.30 pm Wednesday each week.
The father shall collect the children from their respective schools at the commencement of time and shall return the children to the mother’s residence at the conclusion of time.
This order shall commence in the school week following the making of these orders.
The father is to ensure the children have their evening meal, complete their homework and do any other after school activities on Wednesday each week.
The father’s application is otherwise dismissed.
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 Egan & Egan 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 SYDNEY |
FILE NUMBER: SYC 6451 of 2017
| Ms Egan |
Applicant
and
| Mr Egan |
Respondent
and
Independent Children’s Lawyer
REASONS FOR JUDGMENT
On 1 March 2017, prior to the commencement of the final hearing in which the mother and the father sought different parenting and property settlement orders, the parties reached agreement which resolved disputes between them in relation to property settlement and all disputes between them in relation to parenting orders except one. That issue was whether the children would spend after school time with the father on each Wednesday during school term.
The parenting orders which were made on 1 March 2017 are fully set out in Schedule 1. In summary, the parties agreed to have equal shared parental responsibility for all decisions of a major long term nature in relation to S born in 2004 (13), H born in 2006 (10½) and Y born in 2008 (nearly nine) (“the children”). The orders provide that the children live with their mother. The time the children were having with their father, which was daytime only on alternate weekends, was increased so that by the start of term two 2017 the children will spend three nights per fortnight with their father during school term. There was also graduated increments in school holiday time so that by the school holidays at the conclusion of term three 2017, the children will be spending equal time during school holidays with each parent. Provision was also made for the children to spend time with their father on special days. The eldest child has particular behavioural problems and an order was made for her to attend upon a counsellor. Further, an order was made that the parties attend upon a therapist for individual family therapy.
The Chapter 15 expert (“the expert”) had prepared two reports in this matter but only the most recent is before me. The expert describes the relationship between the parents as being marked by intractable conflict.
It is the father’s application that the children spend time with him from after school until 7.30 pm each Wednesday during school term. His proposal is that he would pick the two younger children up from their school at about 3.20 pm and the eldest child from her school at 3.30 pm and the children be with him until he drops them back to outside their mother’s residence at 7.30 pm. The mother lives with the children in a ground floor unit.
The mother opposes an order that the children spend time with their father on the Wednesday afternoon of each week.
The Independent Children’s Lawyer (“the ICL”) supports the father’s application but on the basis that the order not commence until 11 October 2017.
The father also seeks that the parents do all acts and things necessary to enable the children to communicate with the father by Facetime or telephone each Tuesday between 6.30 and 7.00 pm. Neither party nor the ICL made any submissions in relation that proposal. The mother’s proposal in that regard is that Facetime and telephone communication happen on Wednesdays (but obviously if the father’s proposal is successful this arrangement would be inappropriate).
Counsel for the mother accepted the orders that were made on 1 March 2017 do not satisfy the statutory definition of substantial and significant time given that the children spend no time with their father other than time on weekends and during school holidays (see s 65DAA (3)(a)(ii) of the Family Law Act 1975 (Cth) (“the Act”)). It could also be asserted that the father is not involved in the children’s daily routine during the school week (see s 65DAA (3)(b)(i)).
As indicated, an order for equal shared parental responsibility has been made in this matter.
Neither party nor the ICL seeks an order for equal time. The issue in this case is whether an order should be made for the children to have substantial and significant time with their father.
Consequently the provisions of s 65DAA of the Act are applicable to the determination of this issue.
Subsection 65DAA(2)(c) – (e) of the Act provides:
…the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child is spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(Emphasis added)
Subsection 65DAA(5) of the Act provides:
…Reasonable practicality
(5) In determining for the purposes of subsection (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Note: Paragraph (c) reference to future capacity -- the court has power under section 13C to make orders for parties to attend family counselling or dispute resolution or participate in courses, programs or services.
WHAT DOES “CONSIDER” IN SS 65DAA (2) MEAN?
The question was raised during submissions as to whether or not the High Court’s statement in Bondelmonte v Bondelmonte [2017] HCA 8 at [43] that “[t]he term “consider” [as used in s 60CC(1) of the Act] imports an obligation to give proper, genuine and realistic consideration” alters the meaning of “consider” adopted by the Full Court at [64] of Goode & Goode (2006) FLC 93-286, namely that in the context of ss 65DAA(1) and (2) of the Act, the word “consider” suggests “a consideration tending to a result, or the need to consider positively the making of an order…”.
The meaning of “consider” adopted by the High Court in Bondelmonte is based upon the definition articulated by Gummow J in Khan v Minister for Immigration and Ethnic Affairs.[1] Gummow J relied upon a number of administrative law cases when expressing his view as to what “considering” required. Khan and those cases are in the genre of cases which the Full Court in Goode & Goode discussed at [57] – [63] but specifically found not to be apposite at [64]. In Goode & Goode the Full Court having referred to discussions about the meaning of the term “consider” in other jurisdictions said at paragraph [64]:
While these observations of the Federal Court are of some assistance, we do not think that the meaning of “consider”, when applied to consideration of administrative law as in the cases referred to, is entirely apposite to the meaning of the word in s 65DAA. This is so because the juxtaposition of ss 65DAA(1)(a), 65DAA(1)(b) and 65DAA(1)(c) suggests a consideration tending to a result, or the need to consider positively the making of an order, if the conditions in s 65DAA(1)(a), being the best interests of the child, and s 65DAA(1)(b), reasonable practicability, are met. The same considerations apply to s 65DAA(2) [The relevant subsections of ss 65DAA(2) being ss 65DAA(2)(c), ss 65DAA(2)(d) and ss 65DAA(2)(e)].
[1] Cited by the High Court as unreported, Federal Court of Australia, 11 December 1987 at 11 also found at [1987] FCA 457 at [25]; (1987) 14 ALD 291 at 292.
I accept the submission by counsel for the mother, that in considering whether the High Court’s statement at [43] in Bondelmonte v Bondelmonte, changes what the word “consider” means in ss 65DAA(2) of the Act, the direct inter-relationship between s 60CA, s 60CC and s 65DAA needs to be examined.
Section 60CA of the Act provides:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC(1) of the Act provides:
Determining child’s best interest
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
(Emphasis added)
Subsections 60CC(2), (2A) and (3) of the Act set out the statutory considerations to which the court should have regard when determining what parenting order is in the child’s best interests. Relevantly, ss 60CC(3)(e) of the Act requires the court to consider “the practical difficulty” of a child spending time with a parent and ss 60CC(3)(m) requires the court to consider “any other fact or circumstance that the court thinks is relevant”.
Orthodox statutory interpretation gives the same meaning to the same word in legislation, particularly if it is in the same section (See Hodges J Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452).
There now can be no doubt as to what the word “considers” imports in
ss 60CC(1) of the Act, namely a proper, genuine and realistic consideration.
The first question is whether there is a basis to distinguish how the word “consider” is used in ss 60CC(1) and how it is used in ss 65DAA(2)(c) and (d) of the Act.
Both ss 60CC(1) and ss 65DAA(2)(c) of the Act require the court to consider what parenting order would be in the best interests of the child.
Subsection 60CC(3)(e) and (m) of the Act on the one hand and ss 65DAA(2)(d) of the Act on the other, require the court to consider whether the child spending substantial and significant time with a parent is reasonably practicable. In doing so:
24.1.Subsections 60CC(3)(f) and (m) of the Act on the one hand and ss 65DAA(5)(b) and (c) of the Act on the other, require the court to consider the capacity of parents to implement an arrangement and to communicate with each other; and
24.2.Both ss 60CC(3)(d) and ss 65DAA(5)(d) of the Act require the court to consider the impact of a changed arrangement upon the child.
I do not accept the submission made by counsel for the father that the meaning of the word “consider” is different in s 60CC and s 65DAA. There is, in my view, no basis to apply a different meaning to the word “consider” in ss 60CC(1) of the Act on the one hand and ss 65DAA(2)(c) and (d) (and ss 65DAA(1)(a) and (b)) of the Act, on the other. To that extent the High Court decision in Bondelmonte v Bondelmonte must supplant the Full Court statement at [64] of Goode & Goode.
The question remains as to whether the word “consider” can mean “proper, genuine and realistic consideration” in ss 65DAA(2)(c) and (d) but mean “a consideration tending to a result, or the need to consider positively the making of an order” in ss 65DAA(2)(e) of the Act.
The work that ss 65DAA(2)(e) might do has been the subject of discussion by Thackray J in E & S [2010] FCWA 3 at [40] and [50]. Thackray J points out that a consideration under ss 65DAA(2)(c) as to whether or not a proposal for substantial and significant time is in a child’s best interests may provide more than one answer because more than one proposal can be in a child’s best interests (that approach has been followed in Morton & Morton [2014] FamCA 672). This leaves a discretion under ss 65DAA(2)(e) to further consider which best interests proposal should be preferred.
The Full Court in Goode & Goode at [64] said it was the juxtaposition of
ss 65DAA(2)(c)(d) and (e) that “suggests a consideration tending to a result, or the need to consider positively the making of an order …”. I am unable to see how that reasoning survives the statement in Bondelmonte v Bondelmonte as to what the word “consider” imports. There is no reason to conclude that the legislature used the word “consider” in two different senses in ss 65DAA(2) of the Act.
Accordingly, when applying s 65DAA(2) of the Act in this case, I interpret the word “consider” on each of the three occasions it is used in that subsection to mean that I need to give “proper, genuine and realistic consideration” to the matters referred to in the subsection without that consideration tending to a result.
DISCUSSION
The father’s contentions
The father contends:
30.1.The children would benefit from spending time with him on week days after school as he would be able to assist them with their homework (the father has a PhD) and participate with them in extra-curricular activities;
30.2.Given that the eldest child is home alone after school and the two younger children are in childcare, the actual time that the children will not be spending time with the mother on a Wednesday afternoon is between one and a half and two hours;
30.3.The children have expressed a view to the expert that they would like to spend additional time with their father (but that expression of views pre-dates the extension of time that the parties have agreed to in the orders of 1 March 2017);
30.4.The father works for himself and has the flexibility to collect the children on Wednesdays; and
30.5.There is no reason that the additional time should not start immediately.
The mother’s contentions
The mother contends:
31.1.The parental relationship is marked by intractable conflict;
31.2.Wherever possible, changeover should be school-based, not door to door;
31.3.The expert’s recommendation that the children spend more time with the father compared to the interim arrangements (being each Sunday from 10:30 am to 6.00 pm) has been accommodated in the consent orders made on 1 March 2017 (alternate weekends, half school holidays and special occasions);
31.4.The mother has a history of anxiety. Her situation, as the undisputed primary carer, should be taken into account;
31.5.Even though the additional time the children will be away from the mother might actually only be one and a half to two hours each week, the mother fears that mid-week time will introduce undue disruption into her household which would be stressful for her to manage, particularly in relation to the eldest child who has a history of behavioural difficulties (which are being addressed by way of individual therapy which, as already mentioned, is the subject of one of the orders made on 1 March 2017);
31.6.The children have a consolidated relationship with their father, even on the basis of the hitherto limited interim time. The consent orders increase that time. There is no need to increase it further;
31.7.The family is “a work in progress” in that it is about to embark upon family therapy with a skilled therapist. To this end the mother submits that the father’s proposal is an unnecessary and destabilising intrusion into the parenting arrangements; and
31.8.The ICL’s proposal for a deferral of Wednesday nights until October 2017 pre-supposes the outcome of the therapy and in doing so selects an arbitrary point in time for the additional time to commence.
When considering the issue of reasonable practicability I take into account the parties do not live far apart from one another and the father has flexible work hours which enables him to commit to the proposal that he has made. Counsel for the mother also agreed that the parents had a current and future capacity to implement the arrangements from a logistical point of view.
The current arrangements for a Wednesday are that the two younger children are in after school care, the eldest child catches public transport home and lets herself into the building and the unit in which she lives. Access to that ground floor unit is firstly by way of a keyed lock on the front door of the building and then by way of a key into the mother’s unit. She is home alone until the mother returns with the younger children between approximately 5.30 and 6.00 pm.
Consequently, on the father’s proposal, the mother would be home at 7.30 pm on Wednesday evening to greet the children when they come in having been dropped off from their father’s motor vehicle outside the mother’s residence. There is no suggestion that the parties would ordinarily need to communicate with one another at that time. I find that there is the capacity, currently and in the future, to implement the arrangement suggested by the father.
It is an agreed fact that the parents’ current capacity to communicate is very poor.
The parties and the ICL had sought the opinion of the expert in respect of the extension to mid-week time. The expert expressed the view that the arrangement would be of benefit to the children and is consistent with the children’s expressed views and that she would be in favour of dropping the children back at 7.30 pm if the father ensured the children were fed and had been given an opportunity to complete their homework and any after school activities. The father indicated that he would attend to their evening meal and indicated he would use the opportunity to involve himself in the children’s school work and after school activities.
The behavioural issues of the elder child are significant (see in particular [67] of the expert’s January 2017 report).
Counsel for the mother submits that an order for mid-week time has the potential to ignite parental conflict and expose the children to that conflict at a time when the family is still getting back on its feet. It is submitted that that presents a risk to the family’s progress that is not worth taking particularly in circumstances where the undisputed primary carer of the children is opposed to it.
The ICL proposes that the additional time should not commence until after the family has engaged in several months of therapy. There is some force in the submission by counsel for the mother that this tacitly recognises the current risk.
There is some force in the notion that given that the parties themselves have agreed to a graduated schedule in relation to school holiday time that a similar approach should be taken to mid-week school term time.
The advocate for the ICL could not articulate what happens to an order deferring the implementation of Wednesday night time until after whatever therapy the parties in the event that that therapy is unsuccessful. There is force in the submission that, in the circumstances of this case, there should be no link in an order made now with the outcome of therapy in the future.
CONCLUSION
I am required to consider whether mid-week time is in the children’s best interests and reasonably practicable and if it is, consider making that order. That consideration needs to be proper, genuine and realistic consideration. I may make an order which I think is proper (s 65D of the Act).
Having taken into account all the matters discussed I consider that mid-week time is in the children’s best interests and is reasonably practicable and that it is proper to make that order to commence immediately on the following conditions:
43.1.The father shall collect the children from their respective schools at the commencement of time and shall return the children to the mother’s residence at the conclusion of time.
43.2.The father is to ensure the children have their evening meal, complete their homework and do any other after school activities on Wednesday each week.
EXTENSION OF ELECTRONIC COMMUNICATION
The orders of 1 March 2017 provide that the parents arrange Facetime or telephone communication between the children and their father each Friday between 6.30 and 7.00 pm. Given that neither party nor the ICL addressed that part of the father’s application (and it did not seem to be pressed by counsel for the father) I decline to make any order for Facetime or telephone calls between the children and their father on Tuesdays. The parties could of course (perhaps with the benefit of therapy) agree to expand the availability of electronic communication between the children and their father in the future.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 16 March 2017.
Associate:
Date: 16 March 2017
SCHEDULE 1
By consent, orders and notations are made in terms of the document titled “Terms Of Settlement – Parenting” (Exhibit 2 dated 1 March 2017), as set out hereunder:
1.That all prior parenting orders be discharged.
2.That the parties shall have equal shared parental responsibility for all decisions of a major long term nature for [S Egan] born … 2004, [H Egan] born … 2006 and [Y Egan] born … 2008 (“the children”).
3.That the children shall live with the mother.
4.That the children shall spend time with the father as follows:
4.1.In school terms as follows:
4.1.1.From the date of the Orders until the commencement of Term 2, 2017 from after school on Friday until 6.00pm on Sunday on each alternate weekend, with the first weekend of the alternate week cycle to be Friday, 17 March 2017.
4.1.2.From Term 2, 2017 and ongoing, from after school on Friday until before school on Monday on each alternate weekend.
4.2.In school holiday periods as follows:
4.2.1.In the Easter 2017 school holidays, for two periods of three nights as agreed between the parties and, failing agreement:
4.2.1.1.from after school on Friday until 5pm the following Monday at the commencement of the school holidays; and
4.2.1.2.from 6.00pm on Tuesday until 6.00pm on Friday during the second week of the school holidays.
4.2.2.In the July 2017 school holidays, for one four night period and one three night period as agreed between the parties and, failing agreement:
4.2.2.1.from after school on Friday on the final day of the school term until 9.00am on the following Tuesday; and
4.2.2.2.from 6.00pm on Tuesday until 6.00pm on Friday in the second week of the school holidays.
4.2.3.From the October 2017 school holidays and ongoing for the school holidays following Terms 1, 2 and 3, for one week as agreed between the parties and, failing agreement, for the first week in even numbered years and the second week in odd numbered years.
4.2.4.In the Christmas school holiday period:
(a) in 2017/18 and 2018/19, a week about arrangement as agreed between the parties and, failing agreement, for the first week and alternating thereafter in odd numbered years and the second week and alternating thereafter in even numbered years;
(b) in 2019/20 and thereafter as agreed between the parties but failing agreement:(i) for the 1st, 3rd and 4th weeks in even numbered years; and
(ii) for the 2nd, 5th and 6th weeks in the odd numbered years.4.3.Except where changeovers occur through school or as otherwise agreed between the parties in writing, the mother shall deliver the children to the father’s residence at the commencement of the father’s time and the father shall deliver the children to the mother’s residence at the conclusion of his time.
4.4.In 2017 and 2018:
4.4.1.On [the father’s birthday] (…) from 9am to 2pm.
4.4.2.At Christmas, as agreed between the parties and, failing agreement, in odd numbered years, from 2pm on Christmas Eve until 2pm on Christmas Day and in even numbered years from 2pm on Christmas Day until 2pm on Boxing Day.
4.5.On Father’s Day each year, from 9am to 5pm.
4.6.On each of the children’s birthdays, from 5.00pm to 7.00pm if the children are not otherwise spending time with the father on that day.
4.7.At Easter, from 9am on Good Friday to 5pm on Easter Monday in even numbered years if Easter does not fall during the school holidays.
4.8.At such other times as agreed between the parties.
5.That notwithstanding any other order, the children shall spend time with the mother as follows:
5.1.On Mother’s Day each year, from 9am to 5pm.
5.2.On … of each year (being the mother’s birthday), from 9am to 5pm.
6.That the parties shall do all acts and things and sign all documents necessary to ensure that the children’s passports have at least six months’ validity at all times.
7.That within 28 days of the date of Orders being made, the parties are to do all acts and things and sign all documents necessary to renew the children’s passports, with the parties to each be responsible for one half of the fees in relation thereto.
8.That each party is required to notify the other of any serious illness or injury by text message as soon as reasonably practicable.
9.That in the event that either party wishes to take the children on an overseas holiday during the period that the children are living with them, then the travelling parent shall be permitted to travel on the following conditions:
9.1.The travelling parent shall, no less than 28 days in advance of the proposed departure date, provide to the remaining parent, copies of return airline tickets for the parent and the children, together with a copy of the proposed travel itinerary and address where the children will be staying;
9.2.The travelling parent shall provide a mobile phone number where the children shall be contactable, and facilitate a call from the children to the remaining parent on no less than two days in each week for a period of no less than 30 minutes at a time agreed between the parties and, failing agreement, between 10.00am and 11.00am AEST.
10.That the mother shall retain the children’s passports and provide them to the father within seven days of the date of proposed overseas travel.
11.That [S] attend upon a counsellor as recommended by Dr [B]. That the parties shall:
11.1.Do all acts and things necessary to facilitate such an appointment and attendance on the counsellor;
11.2.Co-operate, liaise and follow all recommendations of the counsellor; and
11.3.Be equally responsible for the costs of such counselling.
12.That the parties attend upon Ms [M] of [R Services] for the purposes of individual family therapy. The parties shall:
12.1.Do all such acts and things necessary to facilitate attendance upon Ms [M] as directed by Ms [M];
12.2.Facilitate the attendance of any of the children at appointments as directed by Ms [M];
12.3.Co-operate, liaise and follow all recommendation of Ms [M] regarding family therapy;
12.3.Obtain a referral to attend individually upon a counsellor specialising in issues relating to the Father’s other children to aid in discussing the father’s situation with the subject children; and
12.4.Be equally responsible for the costs of such therapy.
13.That the reports prepared by Dr [B], the Child Dispute Memorandum and the documents produced by [X School] be released to the counsellor/s in advance of the first appointment with [S] and/or the other children
14.That the parents shall do all acts and things necessary to enable the children to communicate with the father by Facetime or telephone each Friday between 6.30 and 7.00pm.
15.That each party shall give all necessary consents in writing to the children’s school to forward to the other parent copies of all school reports and notices in relation to parent teacher interviews, school photographs, concert nights, award presentations, open days, speech nights and sporting events.
16.That each party give the other seven days written notice of any proposed change to their home address, mobile number and email address.
17.That both parties be hereby restrained from denigrating the other parent or any member of the other parent’s family in the presence or hearing of the children and are to use their best endeavours to ensure no other person denigrates the other parent or member of the other parents family in the presence or hearing of the children.
18.The Court notes that if any child becomes distressed and wishes to return to the mother during their time with the father, he will telephone the mother and arrange the return of the child.
19.That both parties are restrained from physically disciplining the children.
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