Ratcliffe v Cleary
[2004] TASSC 154
•17 December 2004
[2004] TASSC 154
CITATION: Ratcliffe v Cleary [2004] TASSC 154
PARTIES: WILLIAMS, Estate of Jennifer Robyn, Re
RATCLIFFE, Andrew
v
CLEARY, Leeanne Rubina
BREHENY, John Scott
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: M92/2004
DELIVERED ON: 17 December 2004
DELIVERED AT: Hobart
HEARING DATES: 14, 15 October 2004
JUDGMENT OF: Blow J
CATCHWORDS:
Succession – Family provision and maintenance – Jurisdiction – Persons in whose favour order may be made – Other persons – Person to be treated as having been de facto spouse – Eligibility to be so treated.
Testator's Family Maintenance Act 1912 (Tas), s2(5).
Schmidt v Piggott [1999] TASSC 137, not followed.
Aust Dig Succession [300]
REPRESENTATION:
Counsel:
Applicant: J E Green
Respondents: M E Lovett
Solicitors:
Applicants: John Green
Respondents: Hand Ogilvie & Breheny
Judgment Number: [2004] TASSC 154
Number of Paragraphs: 37
Serial No 154/2004
File No M92/2004
RE ESTATE OF JENNIFER ROBYN WILLIAMS; ANDREW RATCLIFFE v LEEANNE RUBINA CLEARY, JOHN SCOTT BREHENY
REASONS FOR JUDGMENT BLOW J
17 December 2004
The applicant has made an application under the Testator's Family Maintenance Act 1912 ("the TFM Act") for provision out of the estate of the late Jennifer Robyn Williams who died intestate on 28 September 2003. He contends that he was her de facto husband. That is disputed by the first respondent, the only surviving child of the deceased, who would otherwise be entitled to the whole of her estate on intestacy. The second respondent was granted letters of administration of the estate of the deceased as an attorney of the first respondent, who lives outside Tasmania. He took no part in the proceedings, and is prepared to abide by the orders of the Court. On 14 September 2004 the Master ordered the separate trial of two preliminary issues, namely whether the applicant was the de facto husband of the deceased within the meaning of the TFM Act, and whether he was her de facto husband within the meaning of the Administration and Probate Act 1935. The two Acts contained different definitions of "de facto spouse" and "de facto husband" as at the date of death.
The provisions relating to de facto spouses in both of those Acts were amended by the Relationships (Consequential Amendments) Act 2003, which commenced on 1 February 2004, some months after the death of the deceased. That Act contains no transitional provisions. Since legal rights accrued upon the deceased dying intestate in September 2003, it follows that the subsequent amendments do not apply in relation to the estate of this deceased: Maxwell v Murphy (1957) 96 CLR 261. That is common ground.
De facto spouses under the TFM Act
The relevant statutory provisions, as at 28 September 2003, were as follows. Under the TFM Act, s3A(e), an application for provision out of the estate of a deceased person could be made by "A person who was a de facto spouse of the deceased person at the date of the deceased person's death." The definition of de facto spouse in s2(1) read as follows:
"'de facto spouse' means a person ¾
(a)who cohabited with another person of the opposite sex as the spouse of that other person, although not legally married to that other person, for at least 3 years immediately before the death of that other person; and
(b)who was principally dependent on that other person for financial support at the time of the death of that other person ¾
and includes a person who is to be treated as having been a de facto spouse by virtue of an order of the Court made under subsection (5)".
The TFM Act, s2, included the following:
"(3) A person may apply to the Court to be treated as having been the de facto spouse of a deceased person if that person would have been the de facto spouse of the deceased person but for the period during which the persons cohabited.
(4) The executor or administrator of the estate of the deceased person may apply to the Court for a determination that a person referred to in subsection (3) is to be treated as having been the de facto spouse of the deceased person.
(5) The Court may determine that a person is to be treated as having been the de facto spouse of another person if satisfied that, taking into account the circumstances of the case, it is proper to do so."
The applicant was not principally dependent on the deceased for financial support at the time of her death. However he contends that a determination should be made under s2(5) that he is to be treated as having been her de facto spouse. His counsel submitted that there are two bases upon which such a determination could be made. First of all, he made a submission to the effect that the applicant was the "de facto spouse" of the deceased at the time of her death, within the ordinary meaning of that term, and that it was therefore proper for him to be treated as having that status. Alternatively it was submitted that, even if the applicant was not a "de facto spouse" of the deceased according to the ordinary meaning of that term, it was proper to treat him as having that status because he was a devoted carer of the deceased during the last part of her life.
Counsel for the respondent submitted that this was not a proper case for a determination to be made under s2(5). She relied on Schmidt v Piggott [1999] TASSC 137, a decision of Wright J. As far as I am aware that is the only case in which the effect of s2(5) has ever been considered. There is no similar provision in any other Australian jurisdiction, nor anywhere else, so far as I am aware.
In Schmidt v Piggott the couple in question lived together for several years, separated for nine weeks, and resumed cohabitation about four months before the death of the deceased. As a result of the nine-week separation, the applicant did not satisfy par(a) of the definition of "de facto spouse". She was not "principally dependent" on the deceased for financial support at the time of the death, and therefore did not satisfy par(b) of that definition either. Her counsel relied on s2(5), but Wright J rejected his submission as to that subsection, saying the following:
"Mr Tree argues that s2(5) provides the answer. He submits that this subsection stands apart from s2(3) and gives the Court a general dispensation power. In short, he submits the Court may disregard the s2(1)(a) and (b) requirements and make an order in favour of an applicant 'if satisfied that, taking into account the circumstances of the case, it is proper to do so'. The mind boggles. A woman who is in no way dependent upon a deceased testator and lived with him for a week before his death could be treated as his de facto spouse and become a legitimate claimant under s3A if this argument is valid. I cannot accept this. In my opinion, s3(3) [sic], (4) and (5), provide a progressive single structure or procedural code to be followed in circumstances where s2(1)(a) cannot be satisfied. The three year cohabitation period may be modified by this process but the 'principally dependent' provision may not. To put it another way, on my interpretation, s2(5) may only be utilised to modify the cohabitation requirement - it provides no mechanism and invests the Court with no discretion to dispense with proof that the applicant was principally dependent upon the deceased for financial support at the relevant time."
The origins of s2(5) can be traced back to the Law Reform Commission's Report entitled "Obligations Arising From De Facto Relationships" (Report No 12) dated 27 April 1977. That report recommended amendments to legislation, including the TFM Act, to permit claims by parties to de facto relationships. However a conservative approach was taken. The basis of that approach is clear from the following passage on page 6 of the report:
"Within marriage, society recognises that a change of status occurs by reason of the marriage and that this in itself confers rights and obligations on the parties. We would not recommend that the mere fact that parties have lived together as though they were man and wife for even a long period should itself alone confer either legal rights or impose legal obligations; nor do we recommend that any kind of de facto relationship should ever effect any change of status such as occurs on marriage. Basically we feel that rights and obligations in this context should only be conferred or imposed on proof of dependency, and that this should be for the purpose of relieving hardship and injustice only."
On page 7, the Commission made the following recommendation:
"After lengthy discussion we reached what we felt was a satisfactory compromise, which may be stated in general terms as follows: ¾
(a) The test to be applied in determining whether or not legal rights and obligations should be created should be proof of dependency.
(b) Generally, a dependency should only be capable of being proved where the parties have cohabited for a continuous period of 12 months immediately prior to the cessation of the dependency by death or the happening of the event on which the claim was based.
(c) Nevertheless, provided the Court which is adjudicating on the claim is satisfied that a dependency does in fact exist, it should be able, on proof of 'special circumstances', to allow the claim even though the parties have not cohabited for such continuous period of 12 months.
(d) We think it should be left to the Court to decide what may constitute 'special circumstances' but this exception should only apply to enable the Court to give relief in cases of hardship."
On 24 June 1985 the Law Reform Commission of Tasmania published its Report No 43 entitled "Report on Succession Rights on Intestacy". It made the following recommendations in relation to de facto spouses on page 9:
"13 The de facto spouse of an intestate should have the right to apply for provision from the intestate's estate under the Testators Family Maintenance Act 1912 (section 3A TFM ACT).
14 A 'de facto spouse' for the purposes of recommendation 13 (above) should be defined in terms found in the Commission's Report No 12: Obligations Arising from De Facto Relationships, (page 7)."
In 1995, obviously not having rushed into action, the Parliament enacted the Testator's Family Maintenance Amendment Act 1995, which introduced the relevant provisions. In the relevant second reading speech (House of Assembly, 29 November 1994) the then Attorney-General, Mr Cornish, said:
"This Bill reflects recommendations by the Law Reform Commission of Tasmania in its report no 43 'Report on succession rights on intestacy'. It complements other recent State legislation which has recognised the position of de facto spouses."
It is clear that the wording of s2(5) is much more general than the sort of "special circumstances" provision contemplated by the Law Reform Commission in the 1977 report. The Commission proposed that the Court would have a discretion only when an applicant had been dependent upon a de facto partner, only when cohabitation for too short a period would operate to defeat an applicant's claim, only when the applicant would thereby suffer hardship, and only when there were special circumstances. The wording of s2(5) does not suggest any such specific restrictions on the discretion of the Court. If s2(5) had been intended to ameliorate only the requirement of three years' cohabitation, it would have been superfluous, since s2(3) already went as far as legislation could to achieve that objective. As a general rule, all the words in a piece of legislation should be assumed to have some meaning and effect, and not to be superfluous or insignificant: Pearce & Geddes, Statutory Interpretation in Australia, 5th ed, par2.22. It follows that Parliament must have had some purpose in enacting s2(5) other than duplicating s2(3), which was inserted by the same amending Act in 1995.
I regret that I therefore disagree with the conclusion that Wright J reached in relation to s2(5) in Schmidt v Piggott. I think Parliament must have intended the Court to have the power to treat an applicant as a de facto spouse if he or she did not satisfy par(b) of the definition of that term, or even if he or she satisfied neither par(a) nor par(b) thereof, upon being satisfied that it was proper to do so taking into account all the circumstances of the case. The degree to which it would be proper to depart from par(b)'s requirement of principal dependency at the time of death was something left for the Court to determine. Changing social conditions and changing community attitudes would be relevant to any such determination. However I do not think Parliament can have intended s2(5) to confer the power to treat as a de facto spouse a carer, or any other sort of worthy individual, unless that person could properly be regarded as a "de facto spouse" according to the ordinary meaning of those words. If Parliament had intended to take such a radical step, I think clear words indicating that intention would have been used in the provisions introduced in 1995.
It follows that, in determining whether the applicant should be treated as the de facto spouse of the deceased for the purposes of the TFM Act, I must determine whether, having regard to all the circumstances of the case, it would be both accurate and proper to regard and treat him as having been the de facto spouse of the deceased, despite the fact that he was not principally dependent on her for financial support at the time of her death.
De facto spouses under the Administration and Probate Act 1935
At the relevant time, the Administration and Probate Act, s44, provided as follows:
"44 ¾ (1) The residuary estate of an intestate shall be distributed in the manner, or be held on the trusts, set forth in this section.
(2) …
(3) If the net value of the residuary estate exceeds $50 000, and the intestate leaves issue, the residuary estate shall, subject to the provisions of subsection (4), stand charged with the payment to the surviving husband or wife of the sum of $50 000 with interest thereon at the rate of 4 per cent per annum from the date of the death until paid or appropriated, and subject to providing for such sum and interest, where payable, the residuary estate shall be held ¾
(a) as to one-third of the balance upon trust for the surviving husband or wife; and
(b) as to the remaining two-thirds thereof on the statutory trusts for the issue of the intestate.
(3A) …
(3B) Notwithstanding subsection (3), if the intestate leaves a de facto husband or de facto wife and issue but no husband or wife, the whole or any part of the residuary estate of the intestate that would have been required to be held in trust for the husband or wife is to be held in trust for ¾
(a) the de facto husband or de facto wife if the de facto husband or de facto wife was the de facto husband or de facto wife for a continuous period of not less than 2 years immediately before the death of the intestate; or
(b) in any other case ¾
(i)subject to subparagraph (ii), the issue; or
(ii)the de facto husband or de facto wife if the intestate leaves no children or leaves children of the intestate who are also children of the de facto husband or de facto wife.
…
(9) In this section , unless the context otherwise requires ¾
'de facto husband' means a man who, at the time of death of a woman ¾
(a) was the sole partner in a de facto relationship with the woman; and
(b) was not a partner in any other de facto relationship;
'de facto relationship' means the relationship between a man and a woman who, although not legally married to each other, live together as husband and wife on a genuine domestic basis;
'de facto wife' means a woman who, at the time of death of a man –
(a) was the sole partner in a de facto relationship with the man; and
(b) was not a partner in any other de facto relationship;
'husband' includes a de facto husband;
'wife' includes a de facto wife."
The applicant contends that he is entitled to the benefit of s44(3B)(a) on the basis that he was the de facto husband of the deceased for a continuous period of not less than two years immediately before her death. That is to say, he contends that for at least two years prior to her death they lived together as husband and wife on a genuine domestic basis, and that he was the deceased's sole partner in that relationship.
Criteria for determining the existence of de facto relationships
Powell J considered the factors relevant to the existence or otherwise of a de facto relationship in Roy v Sturgeon (1986) 11 NSWLR 454. That was a case under the De Facto Relationships Act 1984 (NSW), which defined "de facto relationship" as "… the relationship of living or having lived together as husband and wife on a bona fide domestic basis although not married to each other". At 458 – 459, his Honour said the following:
"With respect, it seems to me that to attempt to dissect the phrase 'living together as a husband and wife on a bona fide domestic basis' into discrete 'elements', and then to test the facts of a particular case by reference to a set of a priori rules in order to establish whether a particular 'element' is, or is not, present, is to ignore the fact that, just as human personalities and needs vary markedly, so, too, will the various aspects of their relationship which lead one to hold that a man and woman are living together as husband and wife on a bona fide domestic basis vary from case to case. As I said in D v McA (Powell J, 27 June 1986, unreported) it seems to me that each case will involve the Court making a value judgment having regard to a variety of factors relating to the particular relationship, those factors including, but not being limited to, the following:
1 the duration of the relationship;
2 the nature and extent of the common residence;
3 whether or not a sexual relationship existed;
4 the degree of financial interdependence, and any arrangements for support, between or by the parties;
5 the ownership, use and acquisition of property;
6 the procreation of children;
7 the care and support of children;
8 the performance of household duties;
9 the degree of mutual commitment and mutual support;
10 reputation and 'public' aspects of the relationship."
In my view it is appropriate to approach this case by reference to the above list of ten factors, bearing in mind that the list is not exhaustive. I consider that approach to be appropriate both in relation to the determination I must make in relation to the TFM Act, s2(5), and in relation to the determination I must make in relation to the Administration and Probate Act.
The relationship between the applicant and the deceased
The bulk of the evidence as to the relationship between the applicant and the deceased was undisputed. Unless indicated otherwise, the facts that I am about to refer to are undisputed, and I accept the evidence as to them.
Duration of the relationship
According to the applicant's affidavit, he met the deceased in 1998, soon established a sexual relationship, and started going out with her from about the end of 1998. There was no evidence of the relationship breaking down. The deceased died on 28 September 2003.
The nature and extent of the common residence
The applicant and the deceased maintained separate residences at all material times. The deceased lived in a unit that she owned. The applicant continued to rent the flat in which he had been living before meeting the deceased. It was close to her house. He continued to have his mail sent there. At all times he had a telephone and electricity connected at that rented flat, in his name. At all essential times he received rent assistance from the Commonwealth on the basis that he lived there. He would not have been eligible for such payments otherwise.
The applicant said that, as a result of discussions with the deceased's doctor and with the deceased, he understood that she was not expected to live for very many years. He said that, because of that understanding, he decided that he would continue to rent his original residence so that he would still have a place to live when the deceased died. One of the applicant's witnesses, Mr O'Brien, who has been a close friend of his for many years, said in the course of his cross-examination that "later down the track", when the deceased "was getting pretty bad", he told the applicant that he thought he should keep his residence if he could. He said that housing was impossible to get in the area. I have no reason to disbelieve Mr O'Brien's evidence as to that point, but I think it is significant that his advice was given to the applicant at a late stage. The applicant's evidence, however, is to the effect that he kept paying the rent on his flat for some years. Since he was a pensioner, the rent must have taken a very significant part of his income. A desire to go back to the same flat after the deceased died provides no explanation for the applicant having continued to pay for a telephone service at his flat. It is also significant that the applicant did not attempt to sublet his flat during the years from 1999 to 2003. He allowed a Mr Donaghy to stay there for two short periods in 2000, but there is no suggestion that he paid any rent. Because of the circumstances I have referred to, I do not accept the applicant's explanation as to why he continued to rent his flat throughout the years in question.
I turn to the evidence of Mr Donaghy. In early 2000, when he was 15 years old, he started staying in the applicant's flat. He apparently stayed there for some months, and then stayed in the deceased's unit for some months. According to his evidence, the applicant spent at least four nights per week at the deceased's unit, slept with her there, and prepared meals there. He said that he returned from the deceased's unit to the applicant's flat in about September 2000, and stayed there for six weeks before finding his own accommodation. He said that the applicant only slept at his own flat for one or two nights per week during that period.
Another of the applicant's witnesses was a Mr Rees. He moved into a unit near the deceased on 13 June 2000. He befriended her and the applicant, to such an extent that he developed the habit of bringing breakfast to the deceased's unit each morning from about September 2000 onwards. He said the applicant was there nearly every morning.
In September 2002 the deceased was hospitalised following a seizure. The first respondent came to Hobart at that time, and stayed in the deceased's unit. She gave evidence that she looked for a razor so that she could shave her legs, and noticed that there was no male clothing in the unit. In an affidavit, she said that there was none of the applicant's clothing or personal effects in the unit the day after her mother's death, except for a man's shirt that was still in its wrapping and unopened. The applicant's evidence was that he kept clothing in a wardrobe in the spare bedroom of the deceased's unit. The applicant said that he had a clock in the main bedroom of that unit, but the first respondent said that there was no clock there after her mother died. It is likely that one of the parties has not told the truth about the presence or absence of the applicant's clothing, and probably also the clock. At about the time of the death of the deceased, a number of valuable items belonging to her disappeared from her unit. The applicant and the first respondent each said that they did not take them, and that they do not know anything about their disappearance. It is likely that one of them was not telling the truth about the missing items. It is therefore appropriate that I approach the evidence of each of them with caution in relation to any controversial question of fact. The principal controversial question of fact is whether the applicant routinely kept his clothes at the deceased's home. I am not satisfied on the balance of probabilities that he did, nor am I able to make a finding that he did not. The first respondent gave her evidence in a more impressive manner than the applicant gave his, but that might be solely because he was not as well educated as the first respondent. There is an inconsistency between his present assertion that he was the de facto husband of the deceased and evidence that he received a disability support pension and rent assistance as if he were a single man at all material times. However dishonesty in obtaining benefits from the Commonwealth, if it occurred, would not tend to indicate dishonesty, as distinct from a possibility of dishonesty, in relation to any evidence concerning the facts in dispute.
Sexual relationship
As I have said, the applicant and the deceased established a sexual relationship soon after they met in 1998. By early 2000, the applicant was sleeping with the deceased in her unit on most nights of each week. Their relationship did not break down. The deceased was an alcoholic. She was seriously ill, and incontinent, for about the last year of her life. It is likely that the couple's sexual activities abated as a result.
Degree of financial interdependence and support
The deceased and the applicant kept their bank accounts and finances separate. From 1998 onwards, the applicant received a disability support pension under the Social Security Act 1991 (Cth) at the rate applicable to a single man, rather than the lower rate applicable to a member of a couple. At least at times, he earned a little extra income by doing gardening work. From about 2000 the applicant did the deceased's shopping and banking, and paid her bills with her money. He treated his shopping as separate from her shopping. Her breakfasts were provided by Mr Rees. Mr Rees also provided a roast dinner on Sundays. The deceased's lunches were provided by the Meals On Wheels organisation, at least on weekdays. The applicant might have prepared some food for the deceased's evening meals, and might have paid for meals and refreshments when they went out socially, but otherwise he did not support the deceased. There is no evidence that the deceased provided the applicant with any financial assistance or support.
Ownership, use and acquisition of property
The deceased owned her home. She had acquired it before she met the applicant. As I have said, the applicant maintained a separate residence, as a tenant, at all material times. There is no evidence that the deceased ever used the applicant's residence. The applicant used the deceased's residence in the respects that I have described. His use of that residence is consistent with him being a lover and a carer, and therefore not indicative of him having been a de facto husband.
Children
No children were born of the relationship between the applicant and the deceased. The first respondent is the only child of the deceased. The deceased and the applicant had little contact with her. She lives in Victoria, and did at all material times. She disapproved of her mother's drinking habits.
Performance of household duties
There is no evidence that the deceased performed any household duties at the applicant's residence, or even at her own. The applicant cooked evening meals and cleaned at the deceased's residence. In the last year or so of her life, when she was seriously ill, he cared for her, thoroughly attending to her needs. This was clearly an enormous task, and one that required great dedication.
In September 2002 the applicant made enquiries at a Centrelink office about receiving a carer allowance in respect of the care that he provided for the deceased. He was provided with a booklet and some forms, but did not ever make an application for that allowance. I see this as a neutral factor. The booklet that he received reveals that two types of payment were available to eligible carers from Centrelink ¾carer allowance, which was payable when the carer lived in the same home as the disabled person, and carer payment, which was payable even when the carer lived elsewhere. I do not think the evidence establishes whether the applicant would have been any better off or any worse off if he had received carer allowance or carer payment instead of the disability support pension. He said he did not complete the application because he found the papers too difficult to understand. I have no reason to disbelieve him as to that.
Degree of mutual commitment and mutual support
There is no suggestion that the applicant had a sexual relationship with anyone other than the deceased at any material time. However there is evidence suggesting that the deceased had a sexual relationship with a man in Victoria named Graeme. The first respondent saw her with Graeme at a relative's home at Ascot Vale in Victoria in December 2000. The deceased spent three or four weeks in Victoria at that time. On a later occasion, she made another visit to Victoria. During that visit she phoned the first respondent from Graeme's house in Broadmeadows, where she was staying. The first respondent visited them there. The deceased was in Victoria for a couple of weeks on that occasion. When cross-examined about the deceased's relationship with Graeme, the applicant said that he had a recollection of the deceased travelling to Victoria on two occasions; that he did not know she stayed at Graeme's home; and that he believed "there was something going on". In the light of the evidence concerning Graeme, I am not satisfied on the balance of probabilities that the applicant was the deceased's only sexual partner during the relevant years. However there is no evidence that the deceased had any lovers other than the applicant and Graeme during those years.
The applicant remained the deceased's carer and friend to the day she died. The evidence suggests that the deceased provided the applicant with little by way of support, apart from being his companion, friend and lover.
Reputation and public aspects of the relationship
The deceased did not take the applicant's surname. They did not keep their relationship a secret. Their friends and neighbours knew of it. They went out together socially, as a couple.
Conclusions
I will deal first with the question whether, for the purposes of the Administration and Probate Act, the applicant and the deceased lived together as husband and wife on a genuine domestic basis. In my view the evidence falls short of establishing that they did. I say that principally because the applicant maintained a separate residence, because he obtained social security benefits as if he were a single man, because he obtained rent assistance as if he lived alone, because I am not satisfied that he kept any clothes at the deceased's home, because there is no evidence as to where he did his washing, because of the evidence concerning Graeme, because the applicant and the deceased kept their finances completely separate, because there was no jointly owned property, and because there was no significant evidence of any reciprocation by the deceased in relation to the performance of household duties. There are of course factors weighing in favour of a finding that the couple lived together as husband and wife on a genuine domestic basis, but I think that those factors are outweighed by the factors that I have just listed. I am not satisfied that the applicant was the de facto husband of the deceased for the purpose of the Administration and Probate Act.
I turn to the question whether, pursuant to the TFM Act, s2(5), I should determine that the applicant is to be treated as having been the de facto husband of the deceased. A determination in his favour may be made only if I am satisfied that it is proper to do so, taking into account the circumstances of the case. Because of the circumstances that I have listed in relation to the question arising under the Administration and Probate Act, and my view that those factors predominate over the other factors that tend to indicate that the couple lived together as husband and wife on a genuine domestic basis, I am not satisfied that the applicant should be regarded as having been the de facto husband of the deceased in the ordinary sense of that term, and I am not satisfied that I should make a determination in his favour under s2(5).
My determination in relation to the issues referred to in the Master's order is therefore as follows:
1I determine that the applicant was not the de facto husband of the deceased within the meaning of the Testator's Family Maintenance Act 1912.
2I determine that the applicant was not the de facto husband of the deceased within the meaning of the Administration and Probate Act 1935.
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