Harris & Harris
[2022] FedCFamC1F 579
•10 August 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Harris & Harris [2022] FedCFamC1F 579
File number(s): SYC 548 of 2021 Judgment of: SCHONELL J Date of judgment: 10 August 2022 Catchwords: FAMILY LAW – PARENTING – Interim orders – Where the issues for determination were broadly when the father’s time with the children should increase and by how much, and what the holiday arrangements should be – Consideration of primary and additional considerations under s 60CC of the Family Law Act 1975 (Cth) – Orders made increasing time with the children, consistent with the single expert’s recommendations. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 69ZL Cases cited: Adamson & Adamson [2018] FamCA 523
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Marvel & Marvel (No. 2) (2010) 43 FamLR 348; [2010] FamCAFC 101
Mazorski & Albright (2007) 37 FamLR 518; [2007] FamCA 520
Sigley & Evor (2011) 44 FamLR 439; [2011] FamCAFC 22
Division: Division 1 First Instance Number of paragraphs: 51 Date of hearing: 4 August 2022 Place: Sydney Counsel for the Applicant: Ms Petrie Solicitor for the Applicant: Blumberg Family Lawyers The Respondent: Litigant in Person Counsel for the Independent Children's Lawyer: Mr Blank Solicitor for the Independent Children's Lawyer: Laura K Law ORDERS
SYC 548 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HARRIS
Applicant
AND: MS HARRIS
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
SCHONELL J
DATE OF ORDER:
10 AUGUST 2022
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1.The respondent mother (“the mother”) is to retain the passports for X born 2010 and Y born 2014 (“the children”).
2.The applicant father (“the father”) shall spend time with the children in addition to the time set out in the orders made 4 August 2022 as follows:
(a)During the 2022/2023 summer holidays in an alternate week arrangement commencing at 12.00 noon on 25 December 2022, with changeovers to be each Sunday at 6.00 pm.
(b)During the school term:
(i)Commencing in Term 1 2023, the children shall spend three overnights per fortnight with the father from Friday after school to Monday before school; and
(ii)Commencing in Term 2 2023, the children shall spend overnight time with the father in the off-week from after school Wednesday to before school Thursday.
(c)During the short school holidays commencing from the end of Term 1 2023 for one half of each school holiday, with the father in the second half in odd numbered years and the first half in even numbered years.
3.For the purposes of facilitating changeover both during term time and/or school holidays, the parent who is receiving the children for their time with them shall be responsible for collecting the children from school, day care, vacation care or extracurricular activities outside of school, or from the Park B in Suburb C if the children are not attending any of these activities in accordance with these orders, unless otherwise agreed between the parties in writing.
4.The parties are hereby restrained from enrolling the children in any other extra-curricular activities other than the two activities that they are currently enrolled in without the consent of the other party.
5.The father’s costs of the appearance of 13 July 2022 is reserved to the final hearing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Harris & Harris has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
These are interim parenting proceedings in relation to the parties’ two children who are aged 12 and 8.
The children primarily live with the respondent mother (“the mother”) and spend time with the applicant father (“the father”) each alternate weekend between Saturday and Sunday.
A Family Report dated 1 March 2022 was prepared by Dr D, clinical psychologist, which carefully addressed the various allegations made by the parties in their affidavits and provided a clear pathway forward to bring about a resolution of the proceedings.
The matter was initially listed before Judge Eldershaw on 30 June 2022 when her Honour listed the matter for hearing in Division 1 of the Court for the purposes of hearing and determining the father’s then Application in a Proceeding filed 9 June 2022. Her Honour made various directions, listing the matter for hearing on 13 July 2022. As it was on 13 July 2022, the mother appeared before the Court and indicated that she had not had sufficient time to prepare her affidavits and accordingly, the Court granted an adjournment, reserving the father’s costs.
The matter next came before the Court on 4 August 2022 by which time the parties to their credit had significantly narrowed the issues for determination. Many of the matters ultimately became consent orders. What had previously been an area of significant dispute between the parties, narrowed down to the following:
(1)Who should hold the children’s passports upon their return from the United Kingdom;
(2)What the arrangements should be in relation to Christmas Day and Christmas school holidays;
(3)Whether the children’s time with their father should increase from two nights to three nights in Term 1 2023 as suggested by the mother or in Term 4 2022 as suggested by the father;
(4)Where changeover should take place;
(5)Whether time in the off-week should increase to an overnight and if so when; and
(6)What arrangements should there should be for school holidays in 2023 and thereafter.
The matter is in the docket of Judge Eldershaw and her Honour has made orders for the matter to come back before her Honour for further directions on 9 December 2022.
The father relied upon the following documents:
(1)Amended Application in a Proceeding filed 6 July 2022;
(2)Affidavit of father filed 6 July 2022;
(3)Affidavit of father filed 1 August 2022;
(4)Notice of Child Abuse, Family Violence or Risk filed 29 January 2021; and
(5)Family Report of Dr D.
The mother relied upon the following documents:
(1)Response to an Application in a Proceeding filed 1 August 2022;
(2)Affidavit of the mother filed 1 August 2022; and
(3)Family Report of Dr D.
Both parties and the Independent Children’s Lawyer (“the ICL”) prepared a Case Outline document.
Dr D prepared a comprehensive Family Report, which identifies the following relevant issues in relation to the children:
141. The children both have a positive and affectionate relationship with their mother. In relation to the mother’s parenting practices, the children were able to readily identify when and why they are rewarded or given consequences for their behaviour. [X] exhibits an age expected tendency to assert opinion that is different from his mother’s on neutral topics such as their shared recollection of their holidays. The children rely on the sense of security and stability they clearly experience in her care. However, the children do not share that same sense of security and stability with [Mr Harris] at this stage. The children and [Mr Harris] concede that their relationship currently is one that is ‘starting to develop’, which is highly unusual, if not deeply saddening given their living under the same roof for most of their lives. … [Mr Harris’s] behaviour at present speaks to an attempt to correct this, as evident by his attendance at appropriate parenting groups and seminars. His approach to this is underdeveloped but there does at least appear to be a genuine attempt.
142. Unfortunately, the children’s exposure to the content of the current matter is undermining the father’s efforts and the risk is that the children are entering an increasing level of contact with the father but are encouraged to not trust those efforts. The children’s close relationship with their mother is protective but is also enmeshed, such that [Ms Harris] demonstrates little capacity to separate her position with [Mr Harris] (as being understandably grounded in her history with his passive-aggressive behaviour in the home) from her attempts at facilitating their relationship with their father.
In relation to the views of the children, Dr D recorded as follows:
143.… Both children independently expressed hesitation at what ‘might happen’ if contact time was increased. … This would suggest that the children’s resistance is not based on fear of the father directly but certainly increased exposure to his aggressive attitude to their mother, and their mother’s continued distrust of the father’s parenting ability. As such, while this clinician hears the children’s concern’s loud and clear, there is no suggestion that facilitating further avoidance of time with their father will do anything to address any of their primary concerns.
144. Hence based on this review, it is this clinician’s advice to the Court that the children are openly cautious to the possibility of spending more time with their father, and that the Court should place weight on those views. Noting their reservation however, any intended increase in contact should be implemented in a child-focused incremental manner.
Each parent’s understanding of each of the children’s physical, developmental, psychological, emotional, and intellectual needs. The attitude of the parents to the responsibilities and duties of parenthood;
145.… There is potential for these boys to benefit from a life journey that includes a certainly imperfect but present father who failed and tried again, as opposed to an absent father who they only remember as aggressive and/or avoidant.
146.[Mr Harris] is intelligent and possess an acceptable capability to meet the boys’ physical, developmental, and intellectual needs. …
147.… Overall, his ability to meet the entirety of their needs is developing, though he exhibits capacity for some improvement. …
148.… Based on this clinician’s not inconsiderable experience in this jurisdiction, this matter would also appear to be one of the most preventable, but unnecessarily drawn-out matters this clinician has observed, and each passing week only serves to further cement conflict in the children’s lives.
…
150. [X] and [Y] both spoke of their father’s use of excessive corporeal punishment, and both children expressed that this was limited to[ Mr Harris] smacking them on the legs each offering the same single but notable occasion wherein the boys were in trouble for ‘stealing bread’, a notion that this clinician still finds repugnant to even have to articulate for this report. [Mr Harris] acknowledged this was excessive use of force and declared an understanding that it was an ineffective form of punishment. Regrettably however, his understanding of precipitators to the children’s behaviour was without insight. He also demonstrated little to no understanding of how his otherwise aggressive attitude within the home might have impacted the children, nor how the self-centredness of his own behaviours likely provided the genesis of this incident.
…
153. The children do not appear to be at direct risk of harm from either parent. The children were exposed to psychological and emotional harm observing conflict and aggression between separated parents living together though this is ostensibly mitigated by their separation. They are now at risk of continued harm because of that ongoing conflict, but there is no evidence the children stand to be at risk in the isolated care of either parent. The children did not express a fear of harm occurring to them with either parent.
The current and future capacity of the parents to communicate with each other to resolve parenting difficulties that might arise;
154. While this matter remains active in the Court, this factor is difficult to address. It is the clinician’s opinion that both parents are intelligent and capable individuals who by most accounts appear as though they should be able to mediate. Yet their attempts at formal mediation have highlighted an inability to find almost any common ground, especially when it comes to contact time. [Mr Harris] exhibits a limited capacity to see things from the perspective of [Ms Harris] or the children. [Ms Harris] presents a rational, reasonable disposition based in her professional understanding of dysfunctional family matters, but her proposal reiterates that she will not budge on issues she believes are in her children’s best interests and she appears unlikely to be convinced by anyone else as to what those interests are. This clinician’s final hope is that where both parents declare the children’s best interests are their priority, that both parents hear their children when each child says that all they really want is for their parents to get along better and not argue so much. For that to happen each parent must each concede ground and the clinician’s final proposals will outline that.
155. Practically, this clinician must conclude that the parents have demonstrated no capacity to cooperate to resolve parenting difficulties that might arise. Should the Court find that parental responsibility is to remain shared then the Court may wish to ensure a relevant third party such as General Practitioner or Paediatrician is appointed as deciding ‘vote’ in all major health decisions for the boys. Similarly, the appointment of an FDR practitioner or Parenting Coordinator with a casting vote for all other matters should assist keep these parties out of Court subsequent to Final Orders.
…
157. The parents’ ability to communicate to resolve difficulties was addressed above though remains the most significant barrier to the parents successfully maintaining a shared parenting arrangement. [Mr Harris] expressed that asking for more time likely only stood to increase the animosity between them. The clinician reiterates that the children stand to benefit greatly from substantial and significant time with each parent, though no party, children included, seem to believe the best outcome would be an equal-time arrangement. But the opportunity to repair a fractured attachment with their father represents an enormous opportunity to their ongoing development. The children perceive their father as angry, and they too are aware he has much work to do to learn to relate to them. What they have yet to learn is that men can change their behaviour and do better, something that [Mr Harris] is demonstrating and attempt to do now. The children will benefit from significant and substantial opportunity to observe that. Conversely if he does not, then it simply risks further generational transmission of less than optimal father-as-parent models being imposed on both boys.
Dr D made various recommendations in relation to the matter moving forward:
167. … The children stand to benefit enormously from more substantial relationships with their father, one where he has some opportunity to be involved in pre and post school evenings. As such, this clinician proposes the family progress to alternate weekends from Friday after school to Monday before school, with an evening on the off-week together with equally shared holidays.
168. It is recommended that the family be granted leave to travel to the UK every year for four weeks around the June/July school holidays. The trade off, is that [Mr Harris] be granted split holidays for the rest of the year allowing equal opportunity for family that live here. This includes permission to take the boys on holidays should they all wish.
…
172. … Upon their return the children can progress to two overnights, starting from Friday after school to Sunday afternoon in line with the father’s work schedule which he described afforded him more flexibility on Friday’s. Following that, the term 3 school holidays should involve three overnights that is Friday to Sunday night, and an additional day in the off week (returning to two weekend overnights for term 4). The summer holidays can progress to week-about care. [Ms Harris] expressed the children would prefer a split Christmas i.e., half the day with the father and half with their mother rather than an alternate-year arrangement, particularly as the children are aware the mother would otherwise be spending Christmas alone. The clinician believes this to be a fair and reasonable reason to split Christmas day. Following the summer holidays, the children may commence three overnights per fortnight from Friday after school to Monday before school and fully split holidays thereafter. An evening on the off-week could commence a short-time later. At the start of Term 3, that evening on the off-week could extend into an overnight for the children, or alternatively, be added to the alternate weekend of care already in place. An updated review or via FDR mediation cold have this increment to a 5/9, but the children’s voices should be included in that decision.
173. It is this clinician’s view that this form of arrangement would most likely be reasonably acceptable to the children, however it still needs to be emphasised that the parents could come to a similar but more flexible and cooperative arrangement via FDR mediation.
Applicable law
This is an interim hearing and there has been no cross-examination.
By virtue of that fact, I am unable to make findings in relation to the disputed facts of which there are many. Consistent with the provisions of s 69ZL of the Family Law Act (Cth) (“the Act”), I set out in short form my reasons.
However, just because I am unable to determine or resolve disputed facts or assertions does not mean that I ignore allegations of risk.
In Marvel & Marvel (No. 2) (2010) 43 FamLR 348 (which has been cited with approval by the Full Court in Eaby & Speelman (2015) FLC 93-654), the Court observed:
122.In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
88. In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
123. Later, at [100] their Honours amplified their comments and said:
100. The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
In Adamson & Adamson [2018] FamCA 523, McClelland J (as he then was) observed:
50.It is to be observed that that reference in SS v AH to “probabilities” does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect a child from that risk. It is clear that in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those “possibilities”.
Parenting proceedings are governed by Pt VII of the Act.
Section 60CA of the Act provides that the Court is to regard the best interests of the child as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying Pt VII.
In determining what is in a child’s best interests, the Court must consider the matters set out in s 60CC of the Act. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of a child.
The Full Court in Goode & Goode (2006) FLC 93-286 (“Goode”) set out the procedural steps in an interim application, noting that in interim proceedings there may be little uncontested evidence. Consistent with the guidelines outlined in Goode and to the extent relevant and necessary, I have in these reasons identified the competing proposals of the parties, the issues in dispute, and the contested facts.
Primary and additional considerations
In applying the primary considerations, the benefit to the child of having a meaningful relationship with both of the parents is subservient to the need to protect the child from the risks and harms identified in the subsection.
A meaningful relationship “is one which is important, significant and valuable to the child” (Mazorski & Albright (2007) 37 FamLR 518 at [26], cited with approval by the Full Court in Sigley & Evor (2011) 44 Fam LR 439).
Both parties consider it important that the child have a meaningful relationship with the other parent. They just differ as to the way it can occur.
As stated above, I am required when applying the primary considerations to give greater weight to the need to protect the child from risk and harm than to the benefit to the child of having a meaningful relationship with both parents.
In relation to the question of risk, I place considerable weight on the observation of Dr D, where he states:
153. The children do not appear to be at direct risk of harm from either parent. The children were exposed to psychological and emotional harm observing conflict and aggression between separated parents living together though this is ostensibly mitigated by their separation. They are now at risk of continued harm because of that ongoing conflict, but there is no evidence the children stand to be at risk in the isolated care of either parent. The children did not express a fear of harm occurring to them with either parent.
The matters about which the parties are in dispute, in my view, do not touch upon the question of risk per se but rather exemplify the parties’ inability to be able to act constructively in the best interests of their children.
In addressing the additional considerations, I observe the evidence as to the views of the children, which are clearly clouded by the question of the conflict between their parents. I note the firm recommendations of the expert moving forward as to the time that the children should be spending with each of their parents. It is not intended by either party’s orders that there would be a separation of the children from either of the children’s parents. There is no practical difficulty or expense of the children spending time with the other parent.
Of considerable focus for the purposes of these interim proceedings is a consideration of the factors identified in s 60CC(3)(f) and s 60CC(3)(i), calling into focus the insight and capacity of the parents to place the child’s needs above their own, the attitudes of the parents to the child and the responsibilities of parenthood. The orders I propose to make address these considerations within the clear recommendations of the expert evidence about the need to increase the children’s time with their father and that it proceed in a way that meets the needs of the children.
I will now address the specific matters about which the parties are in conflict. In doing so, I have placed significant weight on the Family Report of Dr D and acknowledge that it remains as yet untested.
Who should hold the passports?
The father’s case was that the mother represented a flight risk and that he should hold one of the children’s passports. The mother contended that she was not a flight risk and proposed that she would continue to hold the children's passports as she had done for a significant period of time. I am not satisfied that the father’s proposal logically addresses the question of the mother as a flight risk. The evidence is that the mother has held the children’s passports since separation. The father in his affidavit does not point to any attempt by the mother to leave the country without the father’s consent. The highest it gets to is the mother indicating to the father that she wished to travel with the children to the United Kingdom in 2022. I propose to permit the mother to continue to hold the children's passports, noting that there is a Watchlist order in place.
Arrangements for the children on Christmas Day and Christmas holidays
The parties are at issue in relation to the arrangements for the children on Christmas Day. The mother’s position is encapsulated in her Order 12 as follows:
12.That the party who does not have care of the children on Christmas Day 2022 shall spend time with the children on that day from 10am to 3pm.
Whilst the father’s position is encapsulated in his Order 3 as follows:
3.That pending further Order the children spend time with the Applicant at such times as agreed between the parties, and failing agreement as follows:
…
h.on special days
i.if the children are not already spending time with the Applicant in accordance with these orders as follows:
…
2.from 6pm on Christmas Eve until 12:00pm on Christmas Day in odd-numbered years
…
ii.if the children are spending time with the Applicant on the following special days in accordance with these orders, then the Applicant’s time shall be suspended as follows:
…
2.from 6pm on Christmas Eve until 12:00pm on Christmas Day in even-numbered years
…
I note that the mother has no family in Australia and during the course of her submissions submitted that there is a family tradition of the children waking up in her home and spending Christmas Eve with her. It was not suggested during the course of the father’s counsel’s submissions that this tradition did not exist.
I am of the view that certainly for this Christmas the children should spend Christmas Eve with their mother and accordingly, I propose to make the orders as sought by the father in relation to Christmas Eve and Christmas Day, such that the children will spend the first part of the school holidays with the mother including Christmas Eve and that there be a changeover on Christmas Day such that the children come into the father’s care at noon.
In relation to Christmas school holidays, the mother proposed that the children spend time on a four-day block. The ICL’s position and that of the father accorded with the recommendations of Dr D, which was to the effect that “the summer holidays can progress to a week-about care” (Family Report, paragraph 172).
I am of the view that this proposal by Dr D is appropriate for the children. By this time, the children will have got used to spending time with their father being an increase in the time that they have currently been spending with him.
When weekends should progress to include Sunday overnight, whether time in the off week should move to overnights and what the school holiday arrangements should be in 2023
The parties were at issue as to when time should progress to Sunday evening overnight. The mother contends that the recently implemented arrangement by way of the consent position, being that the children move to a two-night a fortnight regime with their father should continue until the commencement of Term 1 2023, whilst the father’s position was that it should commence in Term 4 2022.
The mother was also opposed to any move to mid-week time, which she said was disruptive.
The mother was also opposed to any arrangement for time in school holidays in 2023.
The father wanted mid-week time to commence in Term 1 2023 and for half the school holidays thereafter.
I note the recommendation of Dr D is as follows:
172.… Following the summer holidays, the children may commence three overnights per fortnight from Friday after school to Monday before school and fully split holidays thereafter. An evening on the off-week could commence a short-time later. …
I propose to follow the recommendation of the Dr D in relation to when Sunday overnight commences and what the arrangements for school holidays should be. The children by then will be in an established pattern of regular time with their father. In relation to the mid-week overnight time, this should commence in Term 2 2023. This is consistent with the recommendations of Dr D that increases in time take place in a graduated way. There is no evidence that mid-week time is any more or less disruptive than weekend time.
I do not propose at this stage to make the orders as sought by the father in relation to increasing school term time further and note that this is a matter that can be addressed by Judge Eldershaw when the matter is next before her Honour, if her Honour deems it appropriate to do so.
The parties were at issue about where changeover locations should occur. The father proposed that it occur at the parties’ home, noting that the father currently lives in Suburb E albeit that that is a temporary accommodation and the mother lives at Suburb F. The mother proposed that arrangements continue in accordance with Order 17 of her Minute of Orders, which is to the following effect:
17.That for the purposes of facilitating changeover both during term time and/or school holidays, the parent who is receiving the children for their time with them shall be responsible for collecting the children from school, day care, vacation care or extracurricular activities outside of school, or from the [Park B] in [Suburb C] if the children are not attending any of these activities in accordance with these Orders, unless otherwise agreed between the parties in writing.
The parties have been implementing this arrangement. Whilst ordinarily it is desirable that parties not come into contact, even the father’s proposal would have that effect. I propose to make the order as sought by the mother.
The mother sought an order in the terms of paragraph 24.4 as follows:
24. Both parties are hereby restrained from:
…
24.4 including the children in adult conversations;
I do not propose to make that order. It would only invite further disputation between the parties, which is, in my view, something to be discouraged. I do not propose to make the mother’s Order 26 as it is covered by Order 27 in the mother’s Minute of Orders, which has been made by the Court.
The mother proposed an order in the following terms:
28.That in the event either parent is unable to care for the children on a day which they would ordinarily spend with the children pursuant to these Orders, that parent must first offer the other parent the opportunity to spend time with the children on that day in lieu of them and, only after giving the parent such opportunity is that parent permitted to seek to have a third-party care for the children.
I do not propose to make such an order. The less these parties have to come into contact with each other at this stage the better and, in my view and experience, such an order is productive of more disputation rather than less.
I note that Y is currently undertaking soccer whilst X is undertaking an extensive program of swimming. I intend to restrain the parties from enrolling the children in any other extra-curricular activities other than the two activities they are currently enrolled in without the consent of the other party.
I am of the view that the above orders are in the children’s best interests and are consistent with the recommendations of Dr D to the extent to which I have otherwise referred.
The father sought costs of the appearance of 13 July 2022. There is insufficient evidence before me as to the parties’ respective financial position to enable me to properly determine the father’s application. I will reserve his costs to the final hearing at which time that matter can be more fulsomely addressed.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 10 August 2022
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