Grohl and Acland
[2018] FamCA 732
•14 September 2018
FAMILY COURT OF AUSTRALIA
| GROHL & ACLAND | [2018] FamCA 732 |
| FAMILY LAW – DE FACTO RELATIONSHIPS – DECLARATION – Whether the parties’ personal relationship was a de facto relationship within the meaning of s 4AA of the Family Law Act 1975 (Cth) – Where the parties had two children together and lived together on a genuine domestic basis - Where the evidence supports a finding that the parties were in a de facto relationship commencing on a date between 1991 and 1995 until 26 January 2004 and from November 2005 until 6 March 2016. |
| Family Law Act 1975 (Cth) Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) |
| Hayes v Marquis [2008] NSWCA 10 Jonah v White (2012) FLC 93-522 Lynam v Director-General of Social Security (1983) 52 ALR 128 Sinclair vWhittaker (2013) FLC 93-551 |
| APPLICANT: | Ms Grohl |
| RESPONDENT: | Mr Acland |
| FILE NUMBER: | WOC | 692 | of | 2016 |
| DATE DELIVERED: | 14 September 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 4 - 6 July 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Gillies SC |
| SOLICITOR FOR THE APPLICANT: | Sydney Family Law Specialists Pty Ltd |
| COUNSEL FOR THE RESPONDENT: | Mr Schroder |
| SOLICITOR FOR THE RESPONDENT: | Mark Brown & Associates |
Order
Pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”) it is declared that:
(a) a de facto relationship existed between the applicant and respondent;
(b) the periods of the de facto relationship for the purposes of s 90SB(a) were:
(i)commencing on a date between 1991 and 1995 until 26 January 2004; and
(ii)from November 2005 until 6 March 2016.
(c) The de facto relationship between the applicant and respondent ended on 6 March 2016.
The matter be listed before a Registrar for the purpose of making trial directions.
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 Grohl & Acland has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA (DELIVERED IN BRISBANE) |
FILE NUMBER: WOC 692 of 2016
| Ms Grohl |
Applicant
And
| Mr Acland |
Respondent
REASONS FOR JUDGMENT
Ms Grohl and Mr Acland lived in a house/s together from 1991 until January 2004 and from November 2005 until August 2017. They have two children who were born in 1997 and 1998 respectively. Ms Grohl says that she and Mr Acland lived in a de facto relationship at all times other than between January 2004 to November 2005 and after 6 March 2016. Mr Acland says they lived in a de facto relationship for the period only 1995 to January 2004.
The significance of this difference is that unless they were living in a de facto relationship and separated after 1 March 2009 this Court has no jurisdiction to hear their property settlement dispute.[1]
[1] See s 2 (Schedule 1) Family Law Amendment (De facto Financial Matters and Other Measures) Act 2008 (Cth) and s 90SM Family Law Act 1975 (Cth).
The focus of this hearing is limited to whether or not Ms Grohl and Mr Acland were living in a de facto relationship that did not break down (on a final basis) before 1 March 2009.
For the reasons which follow I have come to the conclusion that Ms Grohl and Mr Acland were living in a de facto relationship during the periods commencing on a date between 1991 and 1995[2] until 26 January 2004 and recommencing in November 2005 until 6 March 2016 and that this Court has jurisdiction to hear Ms Grohl’s application for a property settlement.
[2] If the matter proceeds to a trial in relation to whether or not a property settlement order is made, the parties indicated they may wish to adduce additional evidence as to contributions during this date range that were not relevant to the issue in this hearing.
Legal principles
Upon application for a property settlement order (s 90SM of the Family Law Act 1975 (Cth) “the Act”)) the Court can make a declaration that a de facto relationship existed, or never existed (s 90RD(1)). As the jurisdiction of the Court to make a declaration is only for the purposes of the primary proceedings, (in this case being the s 90SM proceedings), the Court does not have jurisdiction to make a declaration (other than that a de facto relationship never existed) if final separation occurred prior to 1 March 2009.
For the purposes of this case, the jurisdiction to make a property settlement order is dependent upon certain jurisdictional facts, namely, that there was a de facto relationship for an aggregate period of not less than two years and that it did not break down (on a final basis) before 1 March 2009.
Section 4AA(1) of the Act relevantly provides that a person will be found to be in a de facto relationship with another person if ‘having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.’
Thereafter, s 4AA(2) sets out a number of circumstances that may be relevant in determining whether or not the relationship was a de facto relationship. Those circumstances are:
(a)the duration of the relationship;
(b)the nature and extent of their common residence;
(c)whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e)the ownership, use and acquisition of their property;
(f)the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h)the care and support of children;
(i)the reputation and public aspects of the relationship.
No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship (s 4AA (3)).
A court determining whether a de facto relationship exists is entitled to have regard to such matters, and attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case (s 4AA(4)).
Importantly, in this case, a de facto relationship can exist even where one of the persons is in a de facto relationship with someone else (s 4AA(5)(b)).
While different terms or phrases might be used in describing the relationship necessary for a finding that it is a de facto relationship e.g. ‘the manifestation of coupledom’ or ‘the merger of two individual lives into life as a couple’[3] the Full Court in Sinclair &Whittaker[4] said:
Comments made in the course of discussing facts are not to be elevated to the status of the provisions of the statute or substituted for the statutory test. This is because, taken on their own, they either add nothing to the statutory test, or if they do, they are adding an impermissible gloss. Thus it is not appropriate to consider the facts other than in the light of the statutory test.
[3]Jonah & White (2012) FLC 93-522 (see 86, 681 of Full Court judgment quoting Murphy J as the trial judge).
[4] (2013) FLC 93-551 [94].
The Full Court in Sinclair[5] adopted the observations of Fitzgerald J in Lynam v Director-General of Social Security[6] who said:
Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.
[5] Ibid [55].
[6] (1983) 52 ALR 128 [131].
Whether or not the parties live in a de facto relationship is a question of fact to be determined by the Court.[7] The perception by the parties of their relationship is a relevant matter but not determinative.[8]
[7]Sinclair & Whittaker (supra), [65].
[8] Ibid.
Also in Sinclair[9] the Full Court quoted with apparent approval McColl J in Hayes v Marquis[10] who said:
Statements to a government authority apparently inconsistent with a party’s case may complicate the resolution of the issue of the nature of the relationship, but they are not determinative. They are taken into account as part of all the circumstances ... (Reference omitted)
[9] Ibid [66].
[10] [2008] NSWCA 10 [99].
The onus of proof rests with the person asserting the existence of the de facto relationship and the standard of proof is the civil standard i.e. on the balance of probabilities.
brief background
Ms Grohl and Mr Acland met as young people in the late 1980’s. Ms Grohl was 24 and Mr Acland was 25 when they commenced their relationship. In 1991 Mr Acland moved into Ms Grohl’s parents’ home. Ms Grohl and Mr Acland had a sexual relationship although they retained separate bedrooms while living at Ms Grohl’s parents’ home.
In 1995 Ms Grohl and Mr Acland moved into a flat together and then in 1996, jointly purchased a home at Suburb B. Their first child, Ms C was born in 1997 and their second child, Mr D was born in 1998. Unfortunately, Mr D was diagnosed at an early age as suffering from autism and intellectual delay.
The period after Mr D’s diagnosis was a particularly difficult time for the family and there were some very unpleasant altercations between Ms Grohl and Mr Acland. Ms Grohl blamed Mr Acland for Mr D’s condition and at times behaved quite appallingly. On at least one occasion Ms Grohl spat in Mr Acland’s face during an altercation.
Up until 1997, Ms Grohl worked with Mr Acland in a business operated from his parents’ farm known as ‘Property E’. Ms Grohl ceased her involvement in the business shortly prior to the birth of their first child. Since then, the business has expanded and been corporatised.
In October 2003 Mr Acland met Ms F and commenced a relationship with her.
In December 2003 Ms F left her husband and in January 2004 Mr Acland left Ms Grohl. Ms F commenced to work in Mr Acland’s business. Mr Acland and Ms F commenced to live together in January 2004 at either Ms F’s sister’s home where Ms F resided after separating from her husband or at a granny flat at Property E where Mr Acland resided after separating from Ms Grohl. In mid-2004 Ms F moved to a property at Suburb G and she and Mr Acland continued to live between that property, her sister’s residence and Property E. In March 2014 Ms F moved permanently to the Property E granny flat.
Ms Grohl and Ms F met on a few occasions in 2004 and Ms Grohl was aware, at least at that time, that Mr Acland was in a relationship with Ms F.
Ms C and Mr D met and spent some time with Ms F and their father (jointly) in 2004 and 2005. Ms C and Mr D may have met Ms F’s daughter Ms H during this time.
Upon Mr Acland’s separation from Ms Grohl in January 2004 Mr Acland commenced to pay child support to Ms Grohl by depositing $200 per week into Ms Grohl’s bank account. Mr Acland spent time with Ms C and Mr D each alternate weekend and Mr Acland sought a continuation of that arrangement in a letter dated 15 June 2004 (see exhibit 1 at page 27).
In November 2005 Mr Acland moved back into the home he jointly owns with Ms Grohl at Suburb B where he remained until 11 August 2017. Ms Grohl continues to reside in Suburb B with Ms C and Mr D. Mr Acland lives at Property E with Ms F.
Up until 6 March 2016 Mr Acland continued to pay general outgoings on the Suburb B property. It was only after that date that he sought an equal contribution from Ms Grohl although she has been employed for most of the relevant period. After 6 March 2016 he had his company undertake some repair work to a fence on the Suburb B property and sent an invoice to Ms Grohl for half the cost of same.
application of legal principles
It is rare for me to make a generalised comment about a witness’ credibility but I must say that Mr Acland was a most unconvincing witness. Without wishing to be unnecessarily disrespectful, Mr Acland is a man of limited intellect. He says he is illiterate and hard of hearing but those limitations are not a sufficient explanation for his behaviour in the witness box. Almost every question in cross-examination had to be repeated, sometimes two or three times and I am not persuaded that this was entirely due to his alleged hearing impairment. Mr Acland was at times deliberately evasive. He avoided answering questions that he thought may be unfavourable to his case. He embellished his evidence if he thought it might assist his case. He was deliberately obtuse at times. I have come to the conclusion that I can place very little, if any, weight on Mr Acland’s evidence. Mr Acland’s version of events stretches credulity in so many respects. There are many reasons for coming to that conclusion and I will highlight some of the more significant ones.
In his oral evidence, Mr Acland says he moved back to the Suburb B property in November 2005 for the health and safety of his children. He portrayed Ms Grohl as an extremely violent and unpredictable person. He gave a vivid description of having to sleep with a tape recorder (presumably to record any attack) and of having his dog close by in order to warn him of Ms Grohl’s approach during the night, such was his alleged concern about an attack by her. Nothing of the sought is mentioned in his affidavit.
If, as he stated, Mr Acland needed to protect the children from Ms Grohl, it seems rather odd that he would choose to leave them in her sole care so often. Not only during the nearly two year separation (when no application for the children to be removed from her was made by him) but also after he moved back into the Suburb B property in November 2005 when both he and Ms F said they spent most nights (or part thereof) and most weekends together.
Additionally, while Mr Acland alleges that Ms Grohl was an exceptionally violent person from whom he had to protect his children he says he simply moved back into the home without any discussion and took up occupation of the master bedroom, relegating Ms Grohl to the couch in the lounge room.
Mr Acland denies he and Ms Grohl resumed a sexual relationship and shared a bed. I do not believe him.
I reject Mr Acland’s evidence that Ms Grohl knew of his ongoing affair with Ms F. Ms Grohl denied that she knew and her reaction in the witness box to the many questions about Mr Acland and Ms F’s weekends away after November 2005, was one of genuine shock and grief.
Ms Grohl says that Mr Acland moved back to Suburb B after asking her for a second chance and telling her it was over with Ms F. She says she agreed and they reconciled in November 2005. She says that Mr Acland moved back into the master bedroom with her and they conducted life as they had done before separation in January 2004. I accept her account.
Consistent with Ms Grohl’s evidence of reconciliation is that Mr Acland ceased paying $200 child support into Ms Grohl’s bank account and reverted to his practice of putting $200 to $300 on the fridge. Also consistent with Ms Grohl’s version is that there were no further letters from solicitors to finalise their affairs and Ms Grohl notified Centrelink that she and Mr Acland had reconciled resulting in her ceasing to receive a sole parent’s pension. Also consistent with Ms Grohl’s version of a reconciliation is her evidence, supported by her witnesses, of the many events and activities shared as a family including Sunday drives, Christmases, extended family celebrations etc. Mr Acland concedes many of the family gatherings and events but attempts to put a different gloss on them. I reject his version.
Mr Acland concedes that on his way home from work most nights, he would call Ms Grohl to see if she needed anything from the shops e.g. bread or milk. In my view such mundane acts are yet another element pointing in the direction of their relationship as a couple.
After November 2005 Mr Acland paid expenses for Ms Grohl’s car e.g. tyres, service etc. Mr Acland even bought Ms Grohl a car as a surprise. He gave her gifts at Christmas. They celebrated Mother’s day and Father’s day as a family. They had family rituals like eating take away Chinese food on at least one night each week. Even Ms F knew about the ritual at the Suburb B property of what was called ‘Chinese night’.
Mr Acland paid the electricity, rates and insurance for the Suburb B property, which was his practice before they separated in January 2004 and after they reconciled in November 2005. It was not until after 6 March 2016 that he sought an equal contribution from Ms Grohl.
Mr Acland was never in the practice of discussing his business dealings in detail with Ms Grohl so the fact that he did not do so after November 2005 is hardly surprising. Ms Grohl had not been involved in the business since 1997. Ms Grohl attended to running the home and in particular, attending to the significant needs of their son, Mr D. She was also employed part time.
Mr Acland was charged with offences arising out of the death of one of his employees in November 2003. Throughout 2004 and 2005 the matter was investigated. In or about March 2006 Mr Acland says he was convicted of an offence under the Workcover Act and fined $19,500.
Mr Acland suggests that Ms Grohl’s lack of support during this time supports his case that there was no de facto relationship after January 2004. I reject that contention. Firstly, the parties were separated for a significant period during which Mr Acland was investigated. Secondly, to the extent that Ms F assisted with preparation of documents and attended conferences with Mr Acland at his lawyers is hardly surprising when she was in a relationship with him and employed by him. Thirdly, Mr Acland admits that even though there was a prospect of him going to gaol he did not tell Ms Grohl or his children about that on the day he went off to court for sentencing. I accept Ms Grohl’s submission that Mr Acland went to great lengths to keep her and Ms F apart and keeping Ms Grohl ignorant of the possible outcome of the Workcover matter was one example.
Mr Acland suggests that his dispute with his sisters over their inheritance was also a matter that he kept from Ms Grohl and indicative of the absence of a de facto relationship between them. Mr Acland contends that it was Ms F in whom he confided and who attended appointments with lawyers. This may be so, but again much of the litigation and preparation occurred during the parties’ separation in 2004 and 2005. Mr Acland was in a relationship with Ms F and she was employed by him. That litigation was finalised by consent in 2006. I accept Ms Grohl’s evidence that she was aware of the dispute although not greatly involved. In my view, nothing turns on that fact.
Mr Acland relies substantially on a Centrelink enquiry apparently made by Ms Grohl on 11 February 2009. The record in its original form states:[11]
Customer contacted [Suburb J] on 11 February 2009 regarding General Enquiry for Family Assistance Office. Information was obtained via Counter Statement using Personal – In Office. Document created by s 22 on 11 FEB 2009.
a/n attended advising has lodged itr but has no idea if husband has been claiming ftb through his tax. a/n and husband separated in 2005 when he moved out but shortly after that he moved back in but they lead separate lives. discussed 5 factors of mlr and a/n appears to meet no factors they share no finances nor discuss financial matters with each other. a/n has no idea re his business, he has given her money when she has asked for it for bills. etc. and expenses for the children. friends and relatives and members of the community would not believe they are a mlr. they do not go on holidays together or socialise together. they do not have a sexual relationship. there is definitely no commitment to each other or support to each other. a/n does not do his washing, very occasionally will cook a meal but no other household sharing. they have not discussed making the separation formal nor discussed any future plans. i suggested to a/n legal advice. a/n does not wish to pursue a property settlement as neither have any intention of moving out, she has a disabled child and ex-ptr refuses to move. a/n is currently working but appears may be earning below the nsa income threshold. have given a/n lsc for ftb for 06/07, 07/08 and current ftb. discussed with a/n nsa and the ncl procedure and briefly discussed mai action/income test, advised a/n if claims nsa will need to complete forms for suor.[11] No evidence was given about the correct interpretation for abbreviations contained in the document.
Ms Grohl does not remember making the enquiry but concedes that she must have been the source of the information contained therein. However, some of the content of the document is inconsistent with what both parties agree on e.g. the document states they separated in 2005 and shortly after Mr Acland moved back but it is common ground that separation occurred in January 2004 when Mr Acland moved out and he did not move back in until November 2005. The document is also inconsistent with some of Ms Grohl’s evidence during the trial e.g. that she did Mr Acland’s washing and cooking. Ms Grohl cannot explain the inconsistency but I note that nothing in the document purports to be a direct quote. It is at best a summary. The person making the note was of course not available for cross-examination but if they were, it is unlikely they would have any independent recollection of the conversation. I was impressed by Ms Grohl as a witness. She made appropriate concessions. To the extent that there are inconsistencies in the Centrelink note and her evidence at trial, I am not prepared to infer that Ms Grohl is now being untruthful. It could be that the note taker misunderstood the information provided or it could be that Ms Grohl was making a general enquiry about what her entitlements might be in certain scenarios. Importantly, Ms Grohl did not receive a supporting parent’s pension either before or after the 2009 conversation (other than during the agreed period of separation in 2004 and 2005).
One rather extraordinary and I must say quite a persuasive piece of evidence is Ms Grohl’s description of how she would cut Mr Acland’s toenails and clean the dirt out from underneath his toenails and around the sides. I cannot imagine Ms Grohl performing such an intimate task if she and Mr Acland were estranged as Mr Acland would have me believe.
I was particularly impressed with the evidence from the parties’ daughter, Ms C. True it is that she and her father have had a poor relationship since 2015, but her description of their life as a family from 2005 to 2016 was compelling. She also corroborated her mother’s evidence about Ms Grohl cutting Mr Acland’s toenails, cutting his hair and cooking meals for the family.
Overall I prefer Ms Grohl’s version of her life with Mr Acland. It is plausible and extraneous facts are consistent with it. Mr Acland’s version is farcical. It has him turning up after nearly two years apart and taking over the master bedroom from a woman whom he describes as outrageously violent and whom he had determined never to reconcile with because she had stolen money from him, yet, according to him, she thereafter meekly accepted her lot and slept on the couch in the living room for the next twelve years.
Mr Acland led a double life. He was the family man when living with Ms Grohl and his children all the while maintaining a relationship with Ms F and keeping the two households apart. The children did not spend time with Ms F after November 2005. Ms F’s child Ms H did not spend time with Mr Acland’s children. Ms Grohl and Mr Acland slept together in the master bedroom other than at times when Ms Grohl fell asleep on the lounge or Mr Acland’s CPAP (continuous positive airways pressure) machine for his sleep apnoea disturbed her. Ms Grohl did his washing and cooked his meals.
Even Ms F suspected Mr Acland was lying to her about the nature of his relationship with Ms Grohl and, on at least a dozen occasions, according to her own affidavit, she asked him whether he had reconciled with Ms Grohl or was having a sexual relationship with her. Mr Acland responded in the negative so she stayed with him.
I find that Mr Acland’s motivation for denying the extent of his relationship with Ms Grohl is his attempt to protect his inheritance and business from any claim by Ms Grohl. My finding in this regard is bolstered by the letter sent by Mr Acland’s solicitor in June 2004 wherein he stated that Ms Grohl had no entitlement to his business or his inheritance. The farm he inherited from his parents is now said to be worth tens of millions of dollars.
conclusion
There is no dispute that from 1995 to January 2004 Ms Grohl and Mr Acland lived in a de facto relationship. It may be that the de facto relationship commenced as early as 1991 although I make no finding about the commencement date other than that it was on a date between 1991 and 1995 (for the reasons identified earlier).
The duration of Ms Grohl’s and Mr Acland’s relationship (although not necessarily a de facto relationship) was from 1991 until March 2016 apart from the period January 2004 until November 2005 when they were separated.
The nature and extent of their common residence involved them living at Ms Grohl’s parents’ home from 1991 to 1995; in a flat together from 1995 to 1996 and thereafter at their jointly purchased home at Suburb B which they shared until August 2017 (apart from the period January 2004 to November 2005 when they were separated).
They had a sexual relationship throughout their relationship although at times Mr Acland’s health impeded their ability to engage in sexual intercourse.
While they retained some financial independence from each other in that they always had separate bank accounts (other than their joint mortgage account), Mr Acland was the main ‘breadwinner’ throughout the relationship. Ms Grohl was employed in a part time capacity at various times. Mr Acland paid most of the outgoings on their home and left money for housekeeping on the fridge for Ms Grohl each week. They each contributed to the children’s school fees and other family expenses. Mr Acland bought a car for Ms Grohl and paid for some of the outgoings on her car. It was not until March 2016 that Mr Acland sought an equal contribution from Ms Grohl for outgoings.
In 1996 Ms Grohl and Mr Acland jointly purchased the Suburb B property and lived there from time of purchase until August 2017 (apart from the agreed period of separation in 2004 to 2005). Ms Grohl worked in Mr Acland’s business until shortly before Ms C’s birth but after that time Mr Acland worked in the business and made decisions relevant to its operation.
Ms Grohl and Mr Acland had their ups and downs but I find they were committed to a shared life and regularly engaged in what might be termed ‘usual family activities’ such as Sunday drives; weekly eating rituals such as ‘Chinese night’; spending Christmas together; celebrating Mother’s and Father’s Days together; and attending extended family celebrations such as birthdays and weddings.
While Ms Grohl was the primary carer for the children, Mr Acland undertook activities and spent time with the children. Mr Acland supported the children financially with assistance from Ms Grohl. It was not until shortly before final separation that Mr Acland’s relationship with the children deteriorated. After March 2016, with the exception of Mr Acland leaving some money on the fridge for the children on 30 April 2016, Mr Acland stopped financially supporting the family as he had previously done prior to March 2016.
The public aspects of Ms Grohl and Mr Acland’s relationship were mixed, depending upon whether the witness was a friend or relative of Ms Grohl or Mr Acland. Each witness viewed the relationship largely from what they were told or assumed.
The test of whether or not Ms Grohl and Mr Acland lived in a de facto relationship is whether they lived together as a couple on a genuine domestic basis. I find that they did. It was a de facto relationship for an aggregate period of not less than two years and it did not break down (on a final basis) before 1 March 2009.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 14 September 2018.
Associate:
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