Iris & Cohen (No 2)
[2011] FamCAFC 120
•3 June 2011
FAMILY COURT OF AUSTRALIA
| IRIS & COHEN (NO 2) | [2011] FamCAFC 120 |
| FAMILY LAW - APPEAL – CHILDREN – Appeal from interim parenting orders – Where the orders of the Federal Magistrate required the mother to relocate with the child to Townsville – Where this was not a case where the child had a relationship with the father and was unilaterally moved away from a settled environment – Where the Federal Magistrate was provided with inadequate material and no explanation given for such inadequacy – Where no application was made for an adjournment – Where the Federal Magistrate was not explicitly told that the mother’s legal aid grant was limited to her application for a transfer of the proceedings from Townsville to Wagga Wagga – Where the orders requiring the mother and the child to return to Townsville in the circumstances was impracticable – Where the Federal Magistrate did not properly consider the child and her best interests – Where the Federal Magistrate erred in failing to consider the mother’s application for a transfer of the proceedings – Appeal allowed. FAMILY LAW - APPEAL – Re-exercise of discretion – Proceedings transferred to the Federal Magistrates Court at Canberra for determination of the appropriate geographical venue for the hearing of final parenting orders – Interim parenting orders made until further hearing – Child to live with the mother – Mother to be responsible for decisions relating to the day to day care, welfare and development of the child. FAMILY LAW - APPEAL – Application to adduce further evidence – Where it was said that the evidence would have been filed prior to the hearing had legal aid not been confined to a change of venue – Where there was an absence of an explanation as to why an adjournment was not sought before the Federal Magistrate – Where it is not necessary to receive the further evidence as the appeal is allowed – Application dismissed. FAMILY LAW - COSTS – Error in the orders made by the Federal Magistrate – Costs certificates granted to each party for the costs incurred in relation to both appeals. |
| Family Law Act 1975 (Cth) s65 DAA(5) Federal Proceedings (Costs) Act 1981 (Cth) s 6; s 9 |
| CDJ v VAJ (1998) 197 CLR 172 |
| APPELLANT: | Ms Iris |
| RESPONDENT: | Mr Cohen |
| INDEPENDENT CHILDREN’S LAWYER: | Geraldine Anne Murray |
| FILE NUMBER: | TVC | 1134 | of | 2010 |
| APPEAL NUMBER: | NA | 15 | of | 2011 |
| DATE DELIVERED: | 3 June 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Ainslie-Wallace & Young JJ |
| HEARING DATE: | 1 June 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 18 February 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 165 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Middleton |
| SOLICITOR FOR THE APPELLANT: | Farrell Lusher |
| COUNSEL FOR THE RESPONDENT: | Mr Fellows |
| SOLICITOR FOR THE RESPONDENT: | Bevan & Griffin |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Geraldine Anne Murray |
Orders
That the appeal be allowed.
That the application in an appeal filed 12 May 2011 be dismissed.
The orders of Federal Magistrate Coker made 18 February 2011 be set aside.
The interim applications be transferred from the Federal Magistrates Court Townsville to the Federal Magistrates Court at Canberra, Wagga Wagga circuit and be listed for hearing at 12 noon on 15 June 2011.
The Court grants to the appellant mother a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by her in relation to the appeals NA 15 of 2011 and NA 21 of 2011.
The Court grants to the respondent father a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent father in respect of the costs incurred by him in relation to the appeals NA 15 of 2011 and NA 21 of 2011.
UNTIL FURTHER ORDER:
The child, C Iris born in September 2010, live with the mother.
The mother shall be responsible for decisions relating to the day to day care, welfare and development of the child.
IT IS NOTED that publication of this judgment under the pseudonym Iris & Cohen (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 15 of 2011
File Number: TVC 1134 of 2010
| Ms Iris |
Appellant
And
| Mr Cohen |
Respondent
REASONS FOR JUDGMENT
Introduction
This appeal concerns interim parenting orders made in relation to C Iris (“the child”) aged nine months.
The mother filed a notice of appeal, later an amended notice of appeal on 21 March 2011 appealing the orders made by Federal Magistrate Coker on 18 February 2011.
The orders required the mother and child to return to Townsville by 4 March 2011, that the child live with the mother and for the parties to have equal shared parental responsibility for the child. An order was made providing for the time the child was to spend with the father upon the mother’s return to Townsville. This included from 9.00am to 1.00pm each Saturday and Sunday and from 1.00pm to 5.00pm each Wednesday.
Further orders were made appointing an Independent Children’s Lawyer and requiring the parties to attend on a Family Consultant to discuss arrangements for the child. Such mediation was ordered to be reported.
The mother asked that the orders be stayed. The Federal Magistrate refused that application on 11 March 2011. This court allowed an appeal from that refusal on 5 April 2011 and reserved costs.
There are five grounds of appeal, which allege both errors of law and errors of fact in the exercise of his Honour’s discretion. We will refer to these grounds in some detail as they illuminate the arguments before us such that it will be unnecessary to deal with them in any further detail. In summary, the grounds provide that the Federal Magistrate erred:
Ground 1
(a)In treating the father’s application as a “normal” relocation/recovery matter; and
(b)In failing to consider the factual circumstances of the case as an “exceptional and unique matter requiring a different approach and significant investigation before making any interim orders”.
Ground 2
In unjustifiably criticising the mother for the lack of relevant material in circumstances where:
(a)The mother’s application was restricted by the grant of legal aid to an application for a change of venue;
(b)There was no requirement for the mother to respond in detail as no issue was raised by the father that the mother was unable to properly care for the child and where there was no onus to satisfy the court that the child was not at risk of harm;
(c)The father’s affidavit material was “mainly, if not solely, directed to his right, as opposed to the child’s right, to know and care for the child”;
(d)The father’s affidavit material was directed towards his convenience in spending time with the child in Townsville without appropriate consideration of the impact on the mother and child in being ordered to relocate to Townsville.
(e)The Federal Magistrate refused the mother’s application for Mrs P, with whom she was living and who is the mother-in-law of the mother’s sister to give oral evidence; and
(f)The Federal Magistrate should have adjourned the application and ordered the parties to file relevant material to allow a proper consideration of the relevant issues.
Ground 3
In failing to consider or adequately consider the effects on the mother and consequently the child in ordering that the mother relocate to Townsville, in circumstances where the mother:
(a)Had no connection with Townsville;
(b)Was historically connected with southern New South Wales;
(c)Had no family support in Townsville;
(d)Had only resided with the father for a short period of time prior to the child’s birth;
(e)Was estranged from the father and his family.
Ground 4
Given the effect of relocation on the mother, his Honour should have adjourned the hearing and ordered the filing of further material and/or appointed an Independent Children’s Lawyer and/or an urgent family report.
In failing to adequately consider the practicalities of ordering the mother relocating to Townsville given the parties’ financial circumstances and in a situation where:
(a)The Federal Magistrate recognised that “enormous difficulties” faced the mother, ordered that she relocate;
(b)The mother is eighteen years of age, caring for the child as a single mother, in receipt of Centrelink payments, not receiving support from the father and paying $100.00 per week to Mrs P for her accommodation;
(c)The father was eighteen years of age, unemployed and did not indicate a willingness or ability to provide financial support to the mother;
(d)The father relied on “an asserted willingness of his parents” to provide financial assistance, which was neither evidenced nor sufficiently detailed to indicate whether the father’s parents support was a “practical long term solution”;
(e)His Honour failed to consider the full financial implications of requiring the mother to relocate having regard to the costs of;
(i)Airfares to Townsville;
(ii)Temporary accommodation in Townsville;
(iii)The bond money payable on securing rental accommodation;
(iv)Rent;
(v)The purchase of basic furniture and household goods.
(f)Given the considerable costs of the relocation the Federal Magistrate should have adjourned the proceedings to allow the filing of further material addressing the financial implications.
Ground 5
The Federal Magistrate failed to consider;
(a)That mother was entitled to leave Townsville
(b)The father had not met or attempted to meet the child, despite his assertion that his parents would finance the father’s trip to southern New South Wales;
(c)The need for a “careful and gradual introduction of the child to the father and his extended family”;
(d)At least on an interim basis, the father relocating or travelling to southern New South Wales rather than the mother and the child being required to relocate;
(e)Placed undue emphasis on the presumption of equal shared parental responsibility;
(f)A more cautious alternative in providing for the child to spend time with the father in the short term, pending further investigation.
Should the appeal be allowed the mother seeks that the orders made by the Federal Magistrate be discharged, that the court remit the matter to the Federal Magistrates Court at Wagga Wagga, or alternately Townsville and that a Family Consultant be appointed to prepare an urgent family report. The mother also seeks that the father pays her costs of and incidental to the appeal, including the application for a stay on 7 March 2011 and the hearing of 18 February 2011.
We were provided with a report prepared by a family consultant dated 23 March 2011 as required by the order of the Federal Magistrate. It is of marginal relevance to this appeal but will no doubt be of assistance in future hearings.
History
The applications before the Federal Magistrate are of some significance in this appeal.
The father filed an initiating application on 13 October 2010. The orders sought on a final basis were for shared parental responsibility, asked that the mother return to Townsville, and that the child live with the mother. The orders asked in relation to time with the child, that the father spend time with the child each alternate weekend from 3.15pm Friday to 8.15am Monday and in the alternate week from Tuesday at 3.15pm to Thursday at 3.15pm. Orders were also sought for special days.
The interim orders sought were as follows:
1. That the application for orders 1 to 5 of these interim orders be heard ex parte and without the necessity of serving anyone but the proper officer at Centrelink.
2. That this Application be heard expeditiously.
3. That pursuant to Section 67(2) of the Family Law Act 1975, the Business Manager of Centrelink provide to the Registrar of the Federal Magistrates Court at Townsville information about the location of the Respondent [mother] … and the child … that is contained or comes to the records of Centrelink.
4. That pursuant to Section 67P(1)(d) of the Family Law Act 1975 leave be granted to disclose the information provided to the Registrar of the Federal Magistrates Court at Townsville to the solicitor for the Father … and a process server engaged by him to effect service of the documents on the Mother.
5. That upon receipt of the information as to the whereabouts of the said mother and child, the solicitor for the Father be restrained from divulging that information to the Father.
6. That this Application and any supporting Affidavits ands any interim order made be served upon the mother
7. That within forty eight (48) hours of being served with the Application the Mother return the said child … to Townsville, and thereafter be restrained from removing the child from the Townsville region without the prior written consent of the father or an order of this court.
8. That should the mother not comply with Order No 7 of these Interim Orders within forty-eight (48) hours of the date that these Orders are served upon her, pursuant to Section 67Q of the Family Law Act, a warrant issue authorising and directed The Marshall, all officers of the Australian Federal Police and all officers of the Police Forces of all the states and territories of the Commonwealth of Australia to take possession of the said child … and deliver her to the father forthwith, the person entitled to have the said child live with him pursuant to these Orders.
8. That the parents of the child … have the shared parental responsibility for the long term care welfare and development of the said child including but not limited to:
a)the child’s education (both current and future);
b)the child’s religious and cultural upbringing;
c)the child’s health;
d)the child’s name;
e)changes to the child’s living arrangements that makes it significantly more difficult for the child to spend time with each parent
…
12.Provided that the Mother is living in the same town as the Father the child shall live with the Mother.
13. In the event that the Mother does not return to the Townsville region with the child, the child shall live with the father.
14. In the event that the child is living with the Mother in the Townsville region the Father shall spend time with and communicate with the child at all reasonable times as is agreed between the parties but failing agreement;-
i.Each alternate weekend from 3.15pm Friday til 8.15am Monday;
ii. For the period Tuesday at 3.15pm til the following Thursday at 3 15pm each alternate week;
iii. For four hours on the child’s birthday;
iv. For 6 hours on Christmas Day;
v. Upon the child attaining the age of four years one half of all Queensland gazetted school holidays each year;
15. In the event that the child is living with the Father in the Townsville region the mother shall spend time with and communicate with the child at all reasonable times as is agreed between the parties but failing agreement;-
a) Upon the child attaining the age of four years one half of all Queensland gazetted school holidays each year;
b) Upon the mother giving not less than fourteen (14) days notice of her intention to visit Townsville and spend time with the child; each alternate day from 9am til 6pm;
16. That the parties do all acts and things and sign all necessary papers to enable the Father to be registered as the child’s biological Father and that the child’s surname be registered as [“Iris-Cohen”].
…
The response filed by the mother on 25 January 2011 asked, in the interim orders sought, that the matter be transferred to the Federal Magistrates Court of Canberra, Wagga Wagga circuit list (order 1), that the child live with the mother (order 2) and that the child spend time with the father at all times that may be arranged at the Wagga Wagga Children’s Contact Centre (order 3). It was proposed that the parties make the necessary arrangements for the father’s time with the child to commence as soon as practicable.
Both the mother and the father are eighteen years of age. At the time of the filing of the father’s application he had not seen the child.
Much of the factual background is not in dispute with the notable exception of the circumstances surrounding the end of the relationship and whether there were any arrangements between the parties in relation to the child’s future.
The material before the Federal Magistrate revealed the following information.
The father’s position was that the parties’ relationship commenced in Townsville sometime in October 2009 and that they separated on 5 February 2010. Throughout that time the parties lived with the father’s parents.
In the mother’s affidavit she explained that in July 2010 she moved from Townsville to near Wagga Wagga. The mother said she moved because she felt very stressed being in Townsville because of the behaviour of the father and his family. The mother feared that she may miscarry because of the stress caused by the father and his family. She had previously suffered a miscarriage.
The child was born seven months after the parties’ separation. The father had not seen the child. The father said that despite making numerous enquiries he was unable to find the mother, although he believed that she was in Wagga Wagga. The mother said that she had told the father where she had initially moved.
The mother’s circumstances were that she was sharing a house with her sister’s mother-in-law and had nearby family support. The mother was dependent on social services and had received no money from the father since the birth of the child.
Reasons of the Federal Magistrate
The reasons of May J in the appeal against the stay, summarised the 18 February 2011 reasons of the Federal Magistrate, which we will repeat here:
29.The Federal Magistrate identified the decision he was to make in this matter as “an enormously difficult one”. He said “[i]t is in fact a situation where there is simply no best answer or right answer to be applied in relation to what arrangements should be made with regard to the parenting of this very young child”.
30.The Federal Magistrate was concerned that there was “no opportunity for there to be a relationship between the father and the child”.
31.His Honour said the mother’s proposal was “wholly impracticable” and a “nonsensical proposal”. He considered the mother’s proposal to be just as troubling to him as what he characterised as the “self-serving proposals put forward by the father”.
32. The Federal Magistrate continued:
At the moment there is little that gives me confidence that either parent can properly provide for and meet the needs of this child emotionally, intellectually or to show an appropriate and responsible attitude to the parenting of the child.
His Honour cautioned that “this child would need to be protected from the abusive behaviours of parents who cannot put the best interests of the child to the fore”.
33.It can be said that the Federal Magistrate was aware of the “enormous difficulties for the mother if she were to be required to return to Townsville”.
34.He explained that the mother is currently living with [Ms P], who as he understood it, was “the mother of the partner of her sister”. He said:
There is no information whatsoever as to the quality of that relationship and of course, in any event, when one considers the objects of the Act, there is no comparison that could possibly be drawn between the importance of that relationship between [Ms P] and [the child], as opposed to the importance and significance that the law places upon the relationship between the father and the child.
35.In making orders in the best interests of the child his Honour made an interim order for equal shared parental responsibility. To facilitate this it was said to be necessary for the parties to be in the same locality. It was said at paragraph 43:
This child has a right to a meaningful relationship between her and each of her parents and extended family. That should be facilitated and of course it is the nub of the problem in relation to how that can be arranged in this matter.
36.The Federal Magistrate regarded this case as “not exactly a relocation case”. He did however make reference to the comments of Boland J in Morgan & Miles (2007) FLC 93-343, where her Honour said:
… As explained in Goode, the circumstances of the child at the time of the application or immediately before an unauthorised removal, particularly absent issues such as abuse or violence, may well be likely to be extremely relevant.
… It appears to me that the very difficult issues in cases involving a relocation, … make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis.
37.His Honour ordered that an Independent Children’s Lawyer be appointed and ordered the preparation of an urgent report. In the interim, the Federal Magistrate was of the view that “there must be an opportunity for this child to have some relationship with her father” for him the only way this could be realised was “for the mother to return to the place that she had been, prior to her departure”.
Application to adduce further evidence
On 12 May 2011 the mother filed an application in an appeal seeking to adduce further evidence, being two affidavits. The first is the affidavit of the mother, sworn 10 May 2011, and the second, the affidavit of Mrs P, sworn 10 May 2011. It is said that these affidavits would have been filed prior to the 18 February 2011 hearing, had legal aid not been confined to a change of venue.
Section 93A(2) of the Family Law Act 1975 (Cth) (“the Act”) provides the discretionary power to receive further evidence on appeal. The proper exercise of this discretion was considered by the High Court (per McHugh, Gummow and Callinan JJ) in CDJ v VAJ (1998) 197 CLR 172 at 201 to 204:
109.One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
…
116.The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence, even if it could have been discovered by the exercise of reasonable diligence, may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by this section.
As Mr Fellows, counsel for the father correctly observed, there is an absence of explanation by the mother’s lawyers as to why an adjournment was not sought before the Federal Magistrate.
We are of the view that the appeal should be allowed, thus it is not necessary to admit the further evidence. However, it is appropriate in view of the grounds and submissions contending that the Federal Magistrate should have adjourned the proceedings, to refer to the following passage of the transcript:
MR SMITH:Your Honour, there are some deficiencies, I suppose, as to the living arrangements of the child. Could I call some short evidence in relation to that?
HIS HONOUR: Why isn’t the evidence before me, Mr Smith?
MR SMITH:Look, it should have been, your Honour. I suppose the – look, I don’t know, quite frankly. There should have been some short evidence. I suppose it’s assumed that there is some detail in paragraph 12 about the living arrangements, but I can give you - - -
HIS HONOUR: Well, she says she lives with [Mrs P].
…
HIS HONOUR: Well, as you know, it is not the normal course, in any way, shape or form. There is an enormous amount of difficulty and injustice to the father in relation to this proceeding. I will ask what Mr Bevan has to say in relation to an application for leave.
MR BEVAN:… Ms [Iris] is not present before the court … it would be most difficult for me to cross-examine her in relation to those matters when there is nothing there, and I would object to the evidence being given orally. Thank you.
HIS HONOUR: … I am not inclined to grant leave in relation to evidence being given in relation to this matter. …
…
HIS HONOUR: Mr Smith, I uphold the objection. Your client has had the opportunity to properly prepare and respond in relation to this very serious matter. It would be the gravest of injustices in the conduct of these proceedings to allow the continuation of evidence from the bar table.
Conclusion
In the circumstances of this case we are of the view that the appeal should be allowed. The Federal Magistrate was provided with inadequate material, especially in the mother’s case and there was no explanation given for such inadequacy. No application was made for an adjournment nor was the Federal Magistrate told of the limited certificate provided by Legal Aid (NSW), apart from the contents of the mother’s affidavit where she said at paragraph 24:
I have been able to secure legal aid funding from Legal Aid NSW for the purpose of applying to have these proceedings transferred to Canberra. If it is not transferred, I will have to apply for further legal aid funding through Legal Aid Queensland. This will probably be quite difficult and, if I receive funding, will mean that I will have to find a solicitor in the Townsville area to represent me. It would be unlikely that I would get to meet my solicitor unless I had to be in Court in person.
No doubt the Federal Magistrate would have adjourned the matter if such an application had been made accompanied by full information of the circumstances.
The appeal should be allowed because the orders required on an interim basis the mother and the child to return to Townsville in circumstances that are clearly impracticable on the evidence before the Federal Magistrate. In an endeavour to make arrangements for the father to have a relationship with the child the Federal Magistrate failed to give proper attention to the other matters as required by s 65DAA(5) of the Act, which provides as follows:
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
The Federal Magistrate did not properly consider all of the circumstances of the child and her best interests. His Honour erred in elevating the father’s concerns and proposals above that of the child and the mother, and gave undue weight to the orders sought on behalf of the father.
At this early stage of the proceedings it was wholly inappropriate to have required the mother and child to return to Townsville, particularly given the physical, emotional and financial circumstances that would confront each of them as a result of order 1 of the interim orders of 18 February 2011. The impact of that arrangement was never fully considered by his Honour.
In the appeal against the refusal to grant the stay, May J explained that the Federal Magistrate erred in the refusal to grant the stay by failing to consider that this was not a case where the child was having a relationship with the father and was unilaterally moved away from a settled environment. Further, the Federal Magistrate failed to consider that there was no evidence to indicate that the mother was not properly caring for the child. The better course would have been, after ordering an Independent Children’s Lawyer be appointed, to wait for the expert report and the first appearance of the Independent Children’s Lawyer prior to making interim parenting orders for the relocation of the mother and the child to Townsville.
It was also an error that the Federal Magistrate did not consider the mother’s application for transfer of the proceedings.
We are informed that the interim applications can be heard by the Federal Magistrates Court at Canberra, during the Wagga Wagga circuit on 15 June 2011. It will be entirely in the discretion of the Federal Magistrate to determine the question of the appropriate geographical venue for further hearing of interim and final parenting orders.
We will make some orders until the further hearing. Counsel for the mother proposed orders, however, in view of the short period which will lapse until the matter is heard it is unnecessary for us to re-exercise the discretion. Counsel for the father did not object to the orders we propose to make on the basis that this would not indicate to the Federal Magistrate that we had any concluded view about the future of the matter, including where it ultimately should be heard.
Costs
At the conclusion of the appeal submissions as to costs were heard.
Both counsel for the mother and the father submitted that should the appeal be allowed, costs certificates should be granted pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).
In the event that the appeal is dismissed it was said that no order for costs should be made, given the parties’ financial circumstances and the important issues raised on appeal.
We have found error in the orders made by the Federal Magistrate both in relation to the interim orders and the stay. Certificates should be ordered in each case.
I certify that the preceding thirty six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Ainslie-Wallace & Young JJ) delivered on 3 June 2011.
Associate:
Date: 3 June 2011
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