GALANIS & GALANIS
[2020] FCCA 564
•9 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GALANIS & GALANIS | [2020] FCCA 564 |
| Catchwords: FAMILY LAW – Parenting – equal time arrangement – both parents to facilitate the children’s participation in sport. |
| Legislation: Family Law Act 1975 (Cth), s.60CC |
| Cases cited: Goode & Goode [2006] FamCA 1346 |
| Applicant: | MS GALANIS |
| Respondent: | MR GALANIS |
| File Number: | SYC 3891 of 2017 |
| Judgment of: | Judge Boyle |
| Hearing dates: | 17, 18 and 19 February 2020 |
| Date of Last Submission: | 19 February 2020 |
| Delivered at: | Sydney |
| Delivered on: | 9 April 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Blackah |
| Solicitors for the Applicant: | WMD Law |
| Counsel for the Respondent: | Ms Sproston |
| Solicitors for the Respondent: | Branston Neville |
| Counsel for the Independent Children’s Lawyer | Mr Lawrence |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW Sydney Central Family Law |
ORDERS
That the parenting orders dated 27 October 2017 be discharged and dismissed.
That the father and mother have equal shared parental responsibility for X born in 2003, Y born in 2005, and Z born in 2008 (hereinafter “the children”).
That X and Y spend time with each parent in accordance with their wishes.
That Z born in 2008 (hereinafter “Z”) live with her parents in an equal time arrangement each fortnight as follows:
(a)With the father from 4:30pm on Friday in the first week until 4:30pm on Friday in the second week;
(b)With the mother from 4:30pm on Friday in the second week until 4:30pm on Friday in the following week.
In addition to the time provided for in Order 4, Z shall spend time with each parent as follows:
(a)With the mother at Christmas from 5pm Christmas Day until 5pm Boxing Day commencing in 2020 and for each alternate year thereafter;
(b)With the father at Christmas from 5pm Christmas Eve to 5pm Christmas Day commencing in 2020 and in each alternate year thereafter;
(c)With the mother at Christmas from 5pm Christmas Eve to 5pm Christmas Day commencing in 2021 and in each alternate year thereafter;
(d)With the father at Christmas from 5pm Christmas Day until 5pm Boxing Day commencing in 2021 and for each alternate year thereafter;
(e)With the mother and father for one half of the Christmas school holiday period at times to be agreed between the parties, and failing agreement:
(i)With the mother for the first half in odd numbered years and the second half in even numbered years and years;
(ii)With the father for the second half in odd numbered years and the first half in even numbered years.
(f)For the purposes of Order 5(e):
(i)The time provided for in Order 4 is suspended during the Christmas school holiday period; and
(ii)To determine when the time provided for in Order 4 shall recommence the parties shall continue with the alternate week rotation that would have taken place but for the school holiday period; and
(iii)The school holiday period shall commence from after school on the last day of school and the school holiday period shall conclude at 4:30pm on the day immediately before the first day of school. The halfway point of the school holidays shall be at 4:30pm on the day that falls halfway through the total number of days in the school holiday period.
(g)With the parent who does not have care of Z, on Z’s birthday from after school to 7pm if the birthday falls on a weekday and from 9am to 1pm if the birthday falls on a weekend;
(h)If Z is not in the mother’s care, on the mother’s birthday from after school to 7pm if the birthday falls on a weekday and from 9am to 7pm if the birthday falls on a weekend;
(i)If Z is not in the father’s care, on the father’s birthday from after school to 7pm if the birthday falls on a weekday and from 9am to 7pm if the birthday falls on a weekend;
(j)On the Mother’s Day weekend from after school on the Friday immediately before Mother’s Day until before school on the Monday immediately following Mother’s Day;
(k)On the Father’s Day weekend from after school on the Friday immediately before Father’s Day until before school on the Monday immediately following Father’s Day;
(l)With the mother during Greek Orthodox Easter from 5pm on the Saturday preceding Greek Orthodox Easter Sunday until 5pm on Greek Orthodox Easter Sunday commencing in 2020 and in each alternate year thereafter, and from 5pm on Greek Orthodox Easter Sunday until 5pm on Greek Orthodox Easter Monday commencing 2021 and each alternate year thereafter;
(m)With the father during Greek Orthodox Easter from 5pm on the Saturday preceding Greek Orthodox Easter Sunday until 5pm on Greek Orthodox Easter Sunday commencing in 2021 and each alternate year thereafter, and from 5pm on Greek Orthodox Easter Sunday until 5pm on Greek Orthodox Monday commencing 2020 and each alternate year thereafter.
For the purposes of Z spending time with each parent in accordance with these Orders:
(a)The mother shall collect Z from the father’s place of residence at the commencement of her time with Z, and
(b)The father shall collect Z from the mother’s place of residence at the commencement of his time with Z.
That the father and mother shall both be entitled to attend all events involving the children including:
(a)Sporting fixtures;
(b)Extra-curricular activities which allow for parental attendance; and
(c)School functions and events that allow for parental attendance, including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions.
That the father and mother shall facilitate the children attending all matches, games and training sessions (including interstate and intrastate), for any extra-curricular activity they attend, including sports activities, and shall do all acts and things and sign any documents in order for the children to undertake their extra-curricular activities, including Z’s potential trip to Country A as a member of her sports team. It is noted that the father or his nominee will continue to transport the children in the event the mother will not or cannot do so when the children are living with her.
That the father and mother shall ensure the other parent is kept informed of:
(a)Any medical problems or illness suffered by the children while in the other parent’s care;
(b)Any medication that has been prescribed for the children;
(c)Any school or other functions which the children are to attend; and
(d)Any other matter(s) relevant to the children’s welfare.
That during any period referred to in these orders, in the event of the children being hospitalised or receiving medical attention, the parent spending time with the children shall notify the other parent as soon as practicable after the first contact with either medical practitioner, medical centre or hospital.
That in the event of either parent being hospitalised they will notify or cause the other parent to be notified as soon as possible after the first contact with the hospital.
That the children shall have telephone or skype communication with the parent whom they are not living at any reasonable time.
In the event any of the children are unable to attend school then:
(a)The parent whose care the child is in will facilitate contact between the child and the other parent;
(b)The parent who has care of the child shall notify the other parent immediately of the child’s inability to attend school;
(c)The parent who has care of the child at that time is responsible for making care arrangements for the sick child;
(d)The parent who has care of the child at that time shall do all things necessary to ensure that the child obtains medical treatment, and should the child be absent from school in excess of two (2) days that parent must obtain a doctors certificate which shall be provided to the other parent forthwith.
Both parties shall keep the other informed of their contact telephone numbers and address and shall notify the other parent of any change to those details as soon as practicable thereafter.
That for the purposes of communicating information, the father and mother shall:
(a)Communicate by telephone in regard to matters of an urgent nature and otherwise;
(b)Communicate by SMS (text message) about day to day matters including arrangements for each party to spend time with the children.
That each party be restrained from making critical or derogatory remarks in relation to the other parent or their family in the presence or hearing of the children and that each party shall do all things necessary to ensure that no third party makes critical comments about the other parent in the presence or hearing of the children and shall immediately remove the children from the vicinity where such conversation or comments are being made.
That each of the parents are restrained from using the children as a means to communicate with the other parent about issues relating to the children, and shall communicate directly with the other parent on relevant issues by text message or email.
That the father and mother shall do all acts and things to engage in therapy with Dr B, or such other therapist as agreed by the father and mother in writing (“Therapist”) to commence as soon as practicable.
That the parents shall provide a copy of the Family Report dated 18 March 2019, and a copy of these orders to the Therapist.
That in order to implement Order 18 the following shall occur:
(a)The father and mother shall attend appointments as requested by the Therapist;
(b)The father and mother shall be equally responsible for the payment of the Therapist’s fees;
(c)The father and mother shall do all acts and things necessary to facilitate Order 18, including encouraging and facilitating the attendance of the children, should the Therapist request or recommend their attendance.
That within fourteen (14) days of being requested by the other parent, the father and mother shall do all things and sign all documents necessary to cause the children to be issued with a passport, with the father and mother to equally share the cost.
That the mother shall hold the children’s passports, blue books and birth certificates but shall provide the father with access to the documents, upon a request in writing (which includes by SMS text message), within 48 hours, with the father to return the documents within 7 days.
That the father and mother shall be permitted to travel interstate with the children during the time they spend with the children provided that the other parent is informed with at least 24 hours’ notice of the location and contact details of where the children will be staying.
That the father and mother shall be permitted to travel overseas with the children provided that:
(a)The travelling parent provides at least six (6) weeks’ notice to the other parent of the intended overseas travel;
(b)The travelling parent provides to the other parent an itinerary for the travel four (4) weeks prior to the departure date with:
(i)Flight details including flight numbers and departure and arrival details;
(ii)Accommodation details, including addresses and telephone contact details; and
(iii)If possible, an international roaming mobile telephone contact number
That in the event the period of overseas travel exceeds the scheduled parenting time of the travelling parent, then provided the travelling parent offers equivalent make up time to the other parent either before or after the period of overseas travel, an extension to the travelling parent’s scheduled parenting time is hereby permitted.
That in the event of the father travelling overseas with the children, the mother shall provide the children’s passports to the father not less that fourteen (14) days prior to the departure date and the father shall return the children’s passports to the mother within seven (7) days of return from the overseas travel.
THE COURT NOTES THAT:
The parties each support the relationships of the siblings together, and the other parent. It is the parent’s intention that X and Y will be encouraged by both parents to spend time at the other parent’s home when Z is doing so pursuant to these orders.
The parties intend on holidays and special occasions such as Christmas, Greek Easter and birthdays when time arrangements for Z are referred to in these orders, the children will be together in each household.
Orders 1, 2, 7, 9, 10, 11, 14, 15, 16 and 21 to 26 were made on 19 February 2020 by consent.
IT IS NOTED that publication of this judgment under the pseudonym Galanis & Galanis is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 3891 of 2017
| MS GALANIS |
Applicant
And
| MR GALANIS |
Respondent
REASONS FOR JUDGMENT
1.These are parenting proceedings with respect to three of the children of the parties: X, born in 2003; Y, born in 2005; and Z, born in 2008. Mr C is aged 18 years and is living in a shared arrangement.
2.Over the course of the hearing, issues between the parties have narrowed. Orders were made by consent at the conclusion of the hearing that the parties have equal-shared parental responsibility for all three children, and various other matters. That agreement was reached after the evidence concluded. These orders will appear in the orders made pursuant to this judgment, so that the parties need only refer to one document.
3.I note that the mother was not at Court for final submissions, which occurred on the day after the conclusion of the evidence. Her counsel advised she was on a holiday, and they were instructed to proceed with submissions. The father had not been made aware of this until after court the previous day, when arrangements were made for the care of the children.
Issues
4.The issues remaining are:
(a)whether any orders should be made with respect to the living arrangements for X and Y, given their ages and expressed views;
(b)whether time over the Christmas school holiday period should occur in a block or on a week-about basis;
(c)what orders may be appropriate regarding the children’s participation in sport; and
(d)what, if any, are the appropriate arrangements for therapy for the parties and children.
Background
5.The parties commenced cohabitation in 1996 and married in 1997. They separated under the same roof in November 2015 and have lived separately since June 2017.
6.The mother filed an Initiating Application in June 2017 seeking orders with respect to property. The father filed his Response in October 2017 which joined parenting. The mother filed a Reply in December 2017.
7.At the start of the hearing the parties provided Case Outline documents setting out the material relied upon. I have also had regard to the material tendered and marked as Exhibits.
The Law
8.The best interests of the children are paramount in parenting proceedings. The Family Law Act 1975 (Cth) (“The Act”) at section 60CC provides the legislative pathway to determine children’s best interests.[1]
[1] Goode & Goode [2006] FamCA 1346.
Section 60CC(2) The primary considerations are:
(a) The benefit of the children of having a meaningful relationship with both of their parents
9.There is no issue that the children benefit from a meaningful relationship with each of their parents, although Y’s relationship with her mother is currently strained.
(b)The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
10.None of the children have been subjected to the types of harm anticipated by this section. The harm occasioned to the children is from their parents’ conflict and poor communication.
Additional considerations
11.The limited issues requiring determination in this matter do not require a consideration of all section 60CC factors. Those relevant are addressed below.
12.The interviews for the Family Report took place a year before the commencement of the hearing. Both parents agree the current views of X and Z are consistent with their reported views. Since October 2019 Y has spent limited time with the mother. They spent a week together over the Christmas period, and another week towards the end of the holidays.
13.X is described by the Family Consultant as “a confident [and] articulate young person”.[2] Her parents agree that she is mature. She was clear in her view that she likes spending alternate weeks in each parent’s home. This has been her care arrangement for the past three years.
[2] Family Report dated 18 March 2019, paragraph 60.
14.X wanted her parents to communicate more with each other. She referred to each parent texting the other and not receiving an answer.
15.X was aware that her mother wished them to all attend counselling. In her view, none of them want to at the moment. If she changed her mind about that she said she would probably ask her mother, and her mother would organise that for her.
16.Y is described by the Family Consultant as “an articulate [and] intelligent young person who was vocal about her opinions and seemed to relish the opportunity to express them.”[3] She was generally happy with the arrangements, although there were things she would change. Like her sister, she was aware that her parents do not speak to each other, nor answer each other’s messages. She expressed the view that spending a week with each parent worked for her, despite sometimes finding the time with her mother “a bit much”.[4]
[3] Family Report dated 18 March 2019, paragraph 63.
[4] Family Report dated 18 March 2019, paragraph 66.
17.Z is described by the Family Consultant as “a quiet restrained child who seemed rather tense when being seen alone”.[5] She also wished to continue in the current time arrangements, whilst commenting that she sometimes missed her mother.
[5] Family Report dated 18 March 2019, paragraph 67.
18.Mr C was seen as part of the Family Report interviews. The Family Consultant commented on all four children as having good relationships with each other, and both their parents. She noted
they seemed to feel free to express their resentment towards their mother [with respect to their parents comparative support for their sporting activities], without this diminishing the bond between them.[6]
[6] Family Report dated 18 March 2019, paragraph 72.
Whether any orders should be made with respect to the living arrangements for X and Y, given their ages and expressed views
19.X will soon be 17 years and is facing her Higher School Certificate (“HSC”) year. She has lived with her parents on a week-about basis for the past 3 years with no orders in place. Her father is involved during the mother’s time in transporting her to sports games on weekends, and mid-week training. To impose orders on X at her age and stage of maturity does not serve any useful purpose for X.
20.Y is 14 ½ years old. The Family Consultant’s evidence is that Y’s views should be given significant weight. Prior to October 2019 she spent time on alternate weeks with her parents, and siblings. At the time of the Family Report she told the report writer that was what she wanted.
21.There have been difficulties in Y’s behaviour over the last two years. She was stopped by security at D Shopping Centre in July 2019 with respect to shoplifting. The mother had sent the girls shopping together without her. At Y’s request the father was contacted. He attended, and paid for the goods. He did not contact the mother. His evidence is that he remonstrated with Y about the seriousness of her actions.
22.Y has been involved in incidents at school in 2018. She received a warning for retaining a phone in the face of request to return it by another student, and badmouthing that student. The mother’s evidence was “I did not know much about that incident”. She acknowledged that the school contacted her. On another occasion Y was cautioned for pushing a student in the corridor. The mother was not sure if she received a detention for that.
23.The father’s evidence is that he has spoken with Y to try to get to the underlying problem. He believes that Y was having issues with friends at school, and was attention seeking and misbehaving because of that. It is his view that she has now turned a corner. There is no evidence of any recent behavioural problems at school.
24.He regards some of the problems in the mother’s relationship with Y as occurring because she gets angry with Y’s behaviour, and does not look for the cause of the behaviour. Shouting at Y does not work as a discipline strategy in his experience.
25.The mother acknowledged her current difficulties with Y, and thought they need some assistance with respect to their relationship. The orders sought by the mother with respect to Y do not make sense for their current relationship, and the breakdown in their communication. Y has been living predominantly with her father since October 2019. I accept this is reflective of her current views, which have changed since the report interviews.
26.Y spent time with her mother over Christmas, and about three weeks prior to the hearing. The mother gave evidence of occasions she has tried to communicate with Y, who has not responded to her calls or texts.
27.The Family Consultant’s evidence is that the problems in Y and her mother’s relationship have existed over three to four months. In her view, that is not a long period for teenagers. She referred to teenagers needing time to work through issues, and come out the other side.
28.The Family Consultant suggested giving Y a pathway back to her mother. This could be by their doing a mutually enjoyable activity together, or her mother taking her to one of her activities each week. Time together with an activity focus would likely be less stressful and pressured for both of them.
29.Making orders that impose a living arrangement on Y has a risk of causing further difficulties in her relationship with her mother. Y may feel she has not been heard by her mother, and react against it. The parents need to make it clear to Y that they both want her to have a good relationship with each of them. They both see it as important that she spends time with her sisters in each of their homes. There is a balance for Y in knowing what her parent’s expectation is, without being forced into compliance. I propose noting the parent’s wish for the siblings to spend time together in each of their homes.
30.Orders are sought for special occasions such as Christmas, and Greek Orthodox Easter. Consistent with the reasons given above, I propose making orders with respect to Z, and noting that the parties intend that the children will spend those significant times together.
Whether time over the Christmas school holiday period should occur in a block or on a week-about basis
31.The children’s time over the Christmas holidays has continued the week about arrangements. The mother’s desire to be able to spend block period with the children each year is understandable. The evidence is that both parties engage in holiday activities, such as camping and travel out of Sydney. Those arrangements can be difficult in a week about arrangement.
32.As often happens when a less significant issue crystallises during a hearing, there is little evidence on this matter. Having regard to the evidence that both parties engage in holiday activities, I propose making that order with respect to Z, and noting the parent’s expectation with respect to the other siblings.
What orders may be appropriate regarding the children’s participation in sport
33.A large amount of the hearing was taken up with evidence about the children’s sport. Y and Z play sports for the Region E Team. They also play sports for the New South Wales State Team. Y has played sports. X is playing club sports this year. She previously played at representative level.
34.I accept the father’s evidence that Y and Z are very talented sportspeople. I also accept that they have put enormous effort and time into training. Z has been offered a place in an Australian team playing in Country A in the middle of the year.
35.The mother seeks orders that deal with the 2020 season for various sports. Her proposal provides for the father to advise her of all the children’s teams, managers, timetable of games, training and venues. She seeks that the father have the responsibility for transporting them to sport activities; that he is restrained from changing their club without her consent; that the mother advise 12 hours prior to a sports event if she is able to take them to a sports event; and that the father be restrained from committing the children to a non-club or extracurricular event without the mother’s consent if it takes place during her time. There is no certainty in her proposal about sport commitments she would agree to after 2020. It does not address circumstances where the girls may be invited to play for New South Wales or Australia. Those teams are not included in ‘club teams’ as defined in the mother’s orders.
36.The father seeks an order that both parents facilitate the children’s attendance at all matches, games, and training sessions including interstate and intrastate for all extracurricular activities including Z’s potential trip to Country A. The father or his nominee will arrange transport for the children if the mother will not when they are with her. His approach is not prescriptive of what sport, or level of sport, the girls may participate in.
37.The parties and children consulted Dr B during late 2017. The mother agreed that X and Y told Dr B they would like her to be more involved in watching them play, and taking them to training. X made similar comments to the Family Consultant.
38.All of the children complained during the Family Report interviews that their mother was not involved in taking them to training and games. This is partly a practical complaint. It would be easier for the children if both parents were involved, as it would involve less travel time, and waiting while siblings finish. It is also indicative of a desire for their mother’s interest and support. I accept that, at times, the mother would be required to work on a weekend. That would not preclude her being involved when she is not required to work.
39.The mother was cross-examined extensively about her views on the girls’ participation in sports. Although she said that she was interested in their sports and not opposed to them playing, her evidence did not support that. She did not know if she would allow Y and Z to play in the National League for the Club. She did not know whether she would let them play for New South Wales. When pressed she suggested that the girls could play at club level, where there is one training session, and one game each week during the season. She did not consider how this would be received by the children. Given their ages and commitment to their sport, her evidence was bewildering. It supports the conclusion that the mother’s attitude to the responsibilities of parenthood has been lacking, given the importance of these matters to her children.
40.The mother says that she knows nothing about the possibility of Z playing for Australia in Country A later this year. She had not spoken to Z about it, nor made any enquiries of the association although she must have been aware of it at least from the father’s affidavit. She says Y and Z have never discussed with her any desire to be professional players, in direct contrast with the father’s evidence.
41.The mother is affronted that the girls are taken during her time by their father to games and training. As she does not take them, and they have commitments to play and train, it is difficult to understand what she thinks would otherwise happen.
42.The mother’s attitude is that there are other things in life besides sports. The difficulty is that this does not support her daughters’ obvious talent and interest. It creates for the girls a contrast with their father, who does support them. When cross-examined about the children’s complaint that she does not take them to training and games, she said it was “logistically too difficult”. The mother says that she needs to cook dinner, and cannot afford the petrol to drive them to training and games. She has never watched Z play a game. I do not accept that the mother is not able to take them to training and games. It would assist the children if their mother participated.
43.There would be benefits for the relationship between the mother and children, particularly Y, were she to take them to their activities. I accept that the mother must at least have acquiesced in their initial participation in sport, prior to separation. They are talented, keen sportspeople. Their abilities have taken them beyond what either parent may have anticipated. It is important for their relationship with their mother that they see her actively supporting their endeavours.
44.To ensure these children can continue to be involved in the sports they have dedicated an extraordinary amount of time and energy to, I propose making the order sought by the father. The arrangements for their transport to training and games should be shared by the parents if possible. The mother has distanced herself from any involvement in their sport. She complains about the father’s lack of information to her. Whilst there is some merit in her complaint, it demonstrates an extraordinary passivity about informing herself about significant matters for her children. For someone whom, I accept, has a close and loving relationship with her daughters, her approach is inexplicable.
What, if any, are the appropriate arrangements for therapy for the parties and children
45.In terms of therapeutic involvement, the Family Consultant suggested that family therapy would not be of assistance to the parties. Her evidence was family therapy has a specific meaning as a psychotherapeutic intervention. She regarded it as more useful for the parents to consult with a child and family professional, such as a psychologist. She regarded Dr B as being an appropriate person. Y would see her own counsellor through a service such as the local Child Adolescent Mental Health Service, or a private clinic.
46.The proposal of the father and the Independent Children’s Lawyer is that the parents would consult with Dr B, or such other professional as they may agree, and receive advice about an appropriate person to see Y. This is likely to ensure a reliable referral for Y.
47.The mother’s proposal for counselling for the parties through Uniting has some merit. There is no evidence that X and Z presently require that assistance. As I raised with the legal representatives during submissions, there is no evidence of the cost of any therapeutic intervention, nor delays in the availability of therapists or services. In those circumstances, it is not appropriate for orders to be too prescriptive as there could be unforeseeable problems. I propose making orders for Dr B, or such other service as may be agreed in writing.
48.As the father acknowledged during his evidence, the real problem for the children arises from the parties’ poor communication. The children need to see their parents co-operating. This will assist the children by modelling conflict resolution, and ways of resolving problems in relationships. It will also assist if the parents start forming a united front for their children. Unfortunately, this has not been the case following the parties’ separation.
School attendance
49.The parents each need to know when the children are late for school, or absent from school. The orders that are sought by the father require that information be given. This is consistent with the parties having equal shared parental responsibility, as they have consented to do. The mother’s order with respect to provision of a medical certificate should the absence be longer than a period of two days is not onerous. It takes away a source of complaint about either of the parents simply giving in to the children about school attendance.
50.Y’s school attendance has not been at the level of her sisters during 2019. Y’s attendance at school was 84.9 per cent during 2019. Although that is not at a level for the school to become involved with truancy officers, it does demonstrate problems with school attendance. It would be hoped that all three children are supported by each of the parents in their school endeavours.
Conclusion
51.Since the hearing a pandemic has been declared due to COVID-19. This has no doubt caused an enormous change to the lives of these children. Many aspects of these orders will be less relevant now that sport is being suspended. The importance of the parties’ developing their communication is critical for the support they can offer their children through the current uncertainties.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Boyle
Date: 9 April 2020
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