Saari & Rameckers
[2021] FedCFamC2F 192
•27 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Saari & Rameckers [2021] FedCFamC2F 192
File number(s): MLC 8521 of 2019 Judgment of: JUDGE DAVIS Date of judgment: 27 October 2021 Catchwords: FAMILY LAW – Parenting – Consent Orders inconsistent with Family Violence Intervention Orders – application of s 68P of the Family Law Act 1975 (Cth) – obligation to explain the extent of permissible contact to persons named in family violence interim intervention orders and interim intervention orders. Legislation: Family Law Act 1975 (Cth), ss 68P, Q and R
Family Protection Act 2008 (Vic), s 123
Division: Division 2 Family Law Number of paragraphs: 48 Date of last submission/s: 27 September 2021 Date of hearing: 27 September 2021 Place: Melbourne Counsel for the Applicant: Ms Elleray Solicitor for the Applicant: Mazzeo Lawyers Counsel for the Respondent: Mr Mort Solicitor for the Respondent: Leslie Family Law ORDERS
MLC 8521 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS RAMECKERS
Applicant
AND: MR SAARI
Respondent
ORDER MADE BY:
JUDGE DAVIS
DATE OF ORDER:
27 OCTOBER 2021
THE COURT ORDERS BY CONSENT THAT:
1.Paragraphs 2, 3 and 16 of the Orders of Judge McGuire made 29 September, 2020 be and are hereby discharged.
THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER THAT
2.The children, X born in 2017 and Y born in 2018 (children) live with the mother.
3.That the children spend time and communicate with the father as follows:
(a)On each alternate weekend from 9.00 a.m. on Saturday until 12 noon on Sunday (to be extended to 5.00 p.m. on Sunday from 1 December, 2021) commencing 9 October, 2021;
(b)On each alternate Wednesday from 12 noon until 6.00 p.m. (with such time to commence at 1.00 p.m. upon the commencement of the first term of kindergarten 2022) commencing 29 September, 2021;
(c)For Christmas 2021, from 4.00 p.m. on Christmas Day until 3.00 p.m. on Boxing Day;
(d)By telephone or Facetime for up to 15 minutes duration on each Monday and Friday PROVIDED THAT the father delivers to the mother or her agent at changeover a mobile phone for the children's use, with the mother to ensure that such device is charged and available for use during such period and to take reasonable steps to ensure each such communication;
(e)Such further or other times as the parties agree from time to time.
4.That changeover at the commencement and conclusion of time to occur inside of the B Police Station at C Highway, Suburb D or such other place as may be agreed in writing from time to time, save as follows:
(a)as and from 15 October, 2021 until 29 November, 2021 inclusive, changeovers shall occur inside the Suburb G Police Station;
(b)as and from the commencement of the kindergarten for 2022, the father collect the children at the conclusion of kindergarten on Wednesdays AND FURTHER, this Order acts as an authority for the father to do so.
(c)in the event that the mother is unable to attend changeover, she be at liberty to nominate the maternal grandmother or the mother's husband, Mr H, to attend in her absence AND FURTHER the mother shall give the father not less than 24 hours written notice of her nomination.
(d)save for subparagraph 4(c) hereof, neither party shall permit any other third party attending at changeovers, save in the event of an emergency.
5.For the purposes of paragraph 3 hereof, the father shall supervise the children, when they are in the presence of his partner, Ms E (Ms E) and/or the paternal grandfather, Mr F Saari (Mr Saari) and for the avoidance of doubt Ms E and/or Mr F Saari may be in the presence of the children provided that this is supervised by the father and that they are at the time in his care AND IT IS NOTED that the father consents to this Order without admission as to its necessity.
6.It is declared that the preceding Order enabling the children to spend time with Mr F Saari and/or Ms E under supervision by the father and whilst in the father's care is inconsistent (within the meaning of sections 68P and 68Q of the Family Law Act 1975 (Cth) (Act)) with paragraphs 5, 6 and 7, of the Interim (ex parte) Intervention Order dated 8 January 2021 in proceedings [omitted] concerning Mr F Saari and the Interim (ex parte) Intervention Order dated 30 August 2021 in proceedings [omitted] concerning Ms E (together hereinafter referred to as Magistrates Court Orders) wherein Mr F Saari and Ms E are, amongst other things, restrained from:
(a)Contacting or communicating with the children by any means;
(b)Approaching or remaining within 5 metres of the children; and
(c)Going to or remaining within 200 metres of any address or any other place where a protected person lives, works or attends school/childcare,
AND TO THE EXTENT OF ANY INCONSISTENCY between these orders and the Magistrates Court Orders, pursuant to section 68Q of the Act, these orders shall prevail.
7.If the mother requests the father in writing to do so, the father submit to a single hair follicle drug test prior to final hearing, with the father to attend upon a registered pathology laboratory within 10 days of such request and produce a hair sample for testing, with the father to be responsible for the costs and with such test results to be released as soon as practicable upon completion.
8.Pending any further request for hair follicle drug testing, the father be and is hereby restrained from dyeing, bleaching, shaving or colouring his hair or cutting his hair to a length less than 3 centimetres.
9.In the event that the hair follicle test result returns a positive reading for any illicit substance, the parties or either one of them be at liberty to contact the chambers of Judge Davis to have the matter listed as soon as practicable for mention.
10.The father forthwith enrol in, attend and complete a TUNING INTO KIDS Course and provide a Certificate of Completion to the mother, as soon as practicable.
11.The mother enrol in, attend and complete a TUNING INTO KIDS Course as soon as practicable and provide a Certificate of Completion to the father, upon completing the course.
12.The parties and each of them (and, subject to paragraph 13 below, Mr Saari and Ms E) be at liberty to produce and seek to tender a true sealed copy of these Orders and the parties and each of them be at liberty to produce and seek to tender my reasons for making these Orders in Court in any contested Intervention Order proceedings concerning either or both of the parties AND IT IS NOTED that the mother has current intervention order proceedings against Mr F Saari and Ms E.
13.The father be at liberty to provide Mr F Saari and Ms E a true sealed copy of these Orders PROVIDED THAT PRIOR TO DOING SO his legal representatives first have relevantly explained to Mr F Saari and Ms E the operation of s 121 of the Act.
14.The father’s legal representatives explain to the father, Mr F Saari and Ms E, in language that those persons are likely readily to understand, these Orders and the matters of which an explanation is required pursuant to s 68P(2)(d) of the Act.
15.The mother’s legal representatives explain to the mother in language that she is likely readily to understand, these Orders and the matters of which an explanation is required pursuant to s 68P(2)(d) of the Act.
16.The parties or either one of them be at liberty to contact the Chambers of Judge Davis to have the matter listed as soon as practicable for mention in connection with matters arising out of paragraphs 5 and/or 6 of these orders.
AND THE COURT ORDERS BY CONSENT THAT
17.Otherwise all extant interim applications be dismissed.
18.Certify for Advocacy.
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 Saari & Rameckers has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE DAVIS
This is the return of an Application in a Case filed 15 September 2021 (Application) by the Respondent mother (mother).
By that Application, the mother seeks various interim parenting orders in respect of the two children of her relationship with the Applicant father (father). Those children are X, who is four years of age and Y, who is three years of age (children).
Amongst other things, by her Application, the mother sought the variation and/or discharge of certain interim parenting orders made by Judge McGuire (as his Honour then was) on 29 September 2020 (Judge McGuire's orders).
In support of her Application, the mother filed an affidavit sworn by her on 15 September 2021.
On 24 September 2021, the father filed a Response (Response) to the Application. By that Response, the father also sought the variation and discharge of certain of Judge McGuire's orders.
In support of his Response, the father filed an affidavit sworn by him on 24 September 2021.
The Application and Response came before me on 27 September 2021 via Microsoft Teams link. Mr Mort of counsel appeared for the mother and Ms Elleray of counsel appeared for the father.
At the request of counsel for both of the parties, more than once, I stood the matter over to permit them to engage in discussions. During the course of the day, the parties provided me with minutes of proposed orders by consent. In light of some observations I made with respect to those minutes, ultimately, the parties provided me with a revised minute of consent orders on the morning of 28 September 2021.
By paragraphs 5 and 6 respectively of his Response, the father sought the following orders:
That whilst the children are in the care of the Father, the paternal grandfather, Mr F Saari … and the father's current partner, Ms E…, be at liberty to communicate with the children and to approach and remain within 5 metres of the children.
That the father be permitted to provide a copy of this interim order to Mr F Saari, Ms E, [the] Victoria Police and the Magistrates' Court.
The reason that such an order was required was that separate interim intervention orders had been obtained by the mother ex parte against each of the paternal grandfather (Mr F Saari) and the father's new partner (Ms E) in the Magistrates Court at Suburb G (Magistrates' Court Orders).
The persons named as the persons protected by the Magistrates' Court Orders were, in each case, the mother and the children.
I set out below each of the respective Magistrates' Court Orders.
The Interim Intervention Orders made against Ms E at the Suburb G Magistrates' Court in 2021 were as follows:
The Court orders that the respondent must not:
1.Stalk the protected person(s)
NOTE - A person stalks another person if he/she engages in a course of conduct with the intention of causing physical or mental harm to that person including self harm, or arouses apprehension of fear in that person for his or her own safety or that of any other person.
2.Commit prohibited behaviour towards the protected person(s)
NOTE - Prohibited Behaviour is assault, sexual assault, harassment, property damage or interference, or making a serious threat.
3.Attempt to locate, follow the protected person(s) or keeping him/her/them under surveillance.
4.Publish on the internet, by email or other electronic communication any material about the protected person(s).
5.Contact or communicate with a protected person by any means.
6.Approach or remain within 5 metres of a protected person.
7.Go to or remain within 200 metres of any address or any other place where a protected person lives, works or attends school/childcare.
8.Get another person to do anything the respondent must not do under this order.
9.THE RESPONDENT MAY:
a) Communicate with a protected person through a lawyer or mediator; or
b) Participate in mediation by agreement with the protected person. BUT ONLY IF the respondent does not stalk the protected person or engage in prohibited behaviour while doing so.
The Family Violence Interim Intervention Orders made against Mr F Saari at the Suburb G Magistrates' Court in2021 were as follows:
The Court orders that the respondent must not:
1.Commit family violence against the protected person(s).
Note: The Family Violence Protection Act 2008 defines family violence as behaviour by a person towards a family member of that person that is physically or sexually abusive, emotionally or psychologically abusive, economically abusive, threatening, coercive, or in any other way controls or dominates a family member and causes that family member to feel fear for the safety or wellbeing of that family member or another person. Family violence includes behaviour that causes a child to hear or witness or otherwise be exposed to the effects of these behaviours.
2.Intentionally damage any property of the protected person(s) or threaten to do so.
3.Attempt to locate, follow the protected person(s) or keep him/her/them under surveillance.
4.Publish on the internet, by email or other electronic communication any material about the protected person(s).
5.Contact or communicate with a protected person by any means.
6.Approach or remain within 5 metres of a protected person.
7.Go to or remain within 200 metres of any address or any other place where a protected person lives, works or attends school/childcare.
8.Get another person to do anything the respondent must not do under this order.
…
It will be apparent, then, that the relief sought by the father's Response, as identified in paragraph 9 above (and the subject of paragraphs 5 and 6 of the orders which I propose to make), was inconsistent with paragraphs 5, 6 and 7 of each of the Magistrates' Court Orders. Counsel for both of the parties submitted that this was the case and this is reflected in the text of paragraph 6 of the orders which ultimately they sought by consent.
This raised for consideration the regime contained in the Family Law Act 1975 (Cth) (Act) for dealing with inconsistency between parenting orders made by this Court and family violence orders made by other courts. Such regime includes ss s 68P, 68Q and 68R of the Act.
Subsections 68P(1)(a)(i) and (b), 68P(2), and the heading to s 68P, are in the following terms:
68P Obligations of court making an order or granting an injunction under this Act that is inconsistent with an existing family violence order
(1) This section applies if:
(a) a court:
(i)makes a parenting order that provides for a child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with a child; or
…
(b)the order made or injunction granted is inconsistent with an existing family violence order.
(2)The court must, to the extent to which the order or injunction provides for the child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with the child:
(a)specify in the order or injunction that it is inconsistent with an existing family violence order; and
(b)give a detailed explanation in the order or injunction of how the contact that it provides for is to take place; and
(c)explain (or arrange for someone else to explain) the order or injunction to:
(i)the applicant and respondent in the proceedings for the order or injunction; and
(ii)the person against whom the family violence order is directed (if that person is not the applicant or respondent); and
(iii)the person protected by the family violence order (if that person is not the applicant or respondent); and
(d)include (or arrange to be included) in the explanation, in language those persons are likely to readily understand:
(i) the purpose of the order or injunction; and
(ii)the obligations created by the order or injunction, including how the contact that it provides for is to take place; and
(iii)the consequences that may follow if a person fails to comply with the order or injunction; and
(iv)the court’s reasons for making an order or granting an injunction that is inconsistent with a family violence order; and
(v)the circumstances in which a person may apply for variation or revocation of the order or injunction.
For the sake of economy, I do not here extract the whole of the balance of s 68P.
However, in very broad terms, subsections (2A) and (2B) then carve out from s 68P(2) the obligation to explain certain matters to a child (as defined in s 4 of the Act) if it is not in the child's best interest to receive the explanation.
Section 68Q provides:
68Q Relationship of order or injunction made under this Act with existing inconsistent family violence order
(1) To the extent to which:
(a)an order or injunction mentioned in paragraph 68P(1)(a) is made or granted that provides for a child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with a child; and
(b)the order or injunction is inconsistent with an existing family violence order;
the family violence order is invalid.
(2)An application for a declaration that the order or injunction is inconsistent with the family violence order may be made, to a court that has jurisdiction under this Part, by:
(a)the applicant or respondent in the proceedings for the order or injunction mentioned in paragraph 68P(1)(a); or
(b)the person against whom the family violence order is directed (if that person is not the applicant or respondent); or
(c)the person protected by the family violence order (if that person is not the applicant or respondent).
(3)The court must hear and determine the application and make such declarations as it considers appropriate.
I set out below my reasons for making an order under section 68P of the Act.
First, I have had regard to the fact that the order is by consent. That consent was given in the following context. Each of the mother and the father were represented by relevantly experienced counsel in this adversarial parenting proceeding. They each had full knowledge of the Magistrates’ Court Orders and the matters giving rise to them. Indeed, it was the mother who was the applicant for each of the Magistrates’ Court Orders. After canvassing before me the fact that the orders which they sought were inconsistent with the Magistrates’ Court Orders, counsel for both of the parties submitted that I should make such orders nonetheless.
Secondly, to the extent that the consent orders sought by the parties are inconsistent with the Magistrates’ Court Orders they are only inconsistent to the extent that they permit the children to spend time with Mr F Saari and/or Ms E under supervision by the father whilst the children are in the father's care.
In this regard, paragraph 5 of the proposed consent orders provides as follows:
For the purposes of paragraph 3 hereof, the father shall supervise the children, when they are in the presence of his partner, Ms E)…and/or…Mr F Saari AND IT IS NOTED that the father consents to this Order without admission as to necessity.
Accordingly, to the extent that the proposed consent orders are at variance with the Magistrates’ Court Orders, and thus override them by reason of the operation of s 68Q of the Act, they do so with the additional safeguard of the father’s supervision – the necessity for which the father does not accept.
Thirdly, as noted above, the Magistrates’ Court Orders were interim orders and made ex parte.
Fourthly, having regard to the material and the first to third points above I am satisfied that the orders proposed by experienced counsel for the parties are appropriate and do not expose the children to inappropriate risk.
Fifthly, although I am not able to make final determinations of fact at the return of an interim Application and it would be inappropriate for me to do so without evidence being tested, I make the following observation. In all of the circumstances, having considered the material available to me at this stage and the submissions of the parties, I consider that, on an interim basis, permitting the children to spend time with Mr F Saari and/or Ms E whilst under the supervision of the father and in the father's care will facilitate the relationship between the father and the children and is therefore in the children's best interests.
When making the orders, in addition to the orders proposed by the parties, I have inserted an order granting liberty to apply to my Chambers at short notice in connection with matters arising out of paragraphs 5 and/or 6 of these orders. The mother is therefore at liberty to return to Court if there is a material change of circumstances affecting the relevant orders.
Section 68R of the Act which, together with the heading to that section, provides as follows:
68R Power of court making a family violence order to revive, vary, discharge or suspend an existing order, injunction or arrangement under this Act
Power
(1)In proceedings to make or vary a family violence order, a court of a State or Territory that has jurisdiction in relation to this Part may revive, vary, discharge or suspend:
(a)a parenting order, to the extent to which it provides for a child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with the child; or
…
…
(2) The court may do so:
(a) on its own initiative; or
(b) on application by any person.
Limits on power
(3) The court must not do so unless:
(a)it also makes or varies a family violence order in the proceedings (whether or not by interim order); and
(b)if the court proposes to revive, vary, discharge or suspend an order or injunction mentioned in paragraph (1)(a), (b) or (c)—the court has before it material that was not before the court that made that order or injunction.
(4)The court must not exercise its power under subsection (1) to discharge an order, injunction or arrangement in proceedings to make an interim family violence order or an interim variation of a family violence order.
Relevant considerations
(5) In exercising its power under subsection (1), the court must:
(a)have regard to the purposes of this Division (stated in section 68N); and
(b)have regard to whether spending time with both parents is in the best interests of the child concerned; and
(c)if varying, discharging or suspending an order or injunction mentioned in paragraph (1)(a), (b) or (c) that, when made or granted, was inconsistent with an existing family violence order—be satisfied that it is appropriate to do so because a person has been exposed, or is likely to be exposed, to family violence as a result of the operation of that order or injunction.
Note:Sections 60CB to 60CG deal with how a court determines a child’s best interests.
Registration of revival, variation, discharge or suspension of orders and other arrangements
(6)The regulations may require a copy of the court’s decision to revive, vary, discharge or suspend an order, injunction or arrangement to be registered in accordance with the regulations. Failure to comply with the requirement does not affect the validity of the court’s decision.
In broad terms, then, the relevant upshot of s 68R here is that a Magistrate may vary or suspend paragraphs 5 and 6 of my orders if it also makes or varies a family violence order (whether or not by interim order) only if the Magistrate:
(a)has before him or her material that was not before me; and
(b)in exercising power, considers the matters to which the Magistrate must have regard under s 68R(5).
The Magistrate must not discharge my orders unless the conditions identified in subparagraphs (a) and (b) of the previous paragraph are satisfied and the magistrate makes a final order. That is, pursuant to s 68R (4), the Magistrate cannot discharge my orders in order to make an interim order.
At the hearing, I raised with counsel the question whether paragraph 6 of the proposed consent orders was not only intended to prevail over the existing Magistrates’ Court Orders, at least to the extent of any inconsistency between them, but also to any extension or variation of them.
The consent orders ultimately provided to me by counsel for the parties made provision that my orders prevail over any inconsistency with the Magistrates Court Orders and any extension or variation of them.
At the hearing, counsel did not address me on any constraints entailed by the word “existing” in s 68P(1)(b) nor did they address me on the relevance of s 68R to the point which I had raised with them. I wish to make clear that I make absolutely no criticism whatsoever of counsel for not doing so. The issue arose “in the running” at my instigation during an exchange between counsel and me while canvassing the proposed interim consent orders.
However, on reflection, I am inclined to the view that – in the context of the statutory scheme – the word “existing” in s 68P(1)(b) constrains my power to make an order under s 68P to an order which has been made and not a variation or extension of it.
I have not been able to find any authority that deals with this issue. My conclusion is based on a textual and contextual analysis of the section.
First, as a matter of textual analysis, the word “existing” – if given its ordinary meaning – indicates an order that has been made rather than that order being varied including to extend its temporal reach. A variation of an order is, itself a separate order.
Secondly, a contextual analysis buttresses the conclusion that the word “existing” in s 68P(1)(b) supports the textual analysis to which I have referred. In particular, I have in mind the following contextual features:
(a) Section 68P confers upon this Court the power to override a family violence order made by another court: again, see s 68Q, which is extracted above. In my view, the nature of the power conferred on this Court, and the nature of the orders which this Court is given power to override – which relate to the prevention of family violence – militate in favour of a narrow construction of the section.
(b) Further, the power of a relevant state court in turn to vary, discharge or suspend an order made by this Court which overrides an order which had been made by another court is limited by the terms of s 68R, which I have extracted and discussed above.
(c) If s 68P(1)(b) were to be construed as empowering this Court to make orders which have the effect of overriding any variations to existing family violence orders of state courts then this would have the effect of hamstringing those courts in varying existing relevant orders even on the basis of new material.
Accordingly, I will amend paragraph 6 of the proposed consent orders to delete the reference to “extension or variation”.
I have also slightly amended that paragraph as it was provided to me in order to take account of matters arising from sections 68P and 68Q of the Act. For example, I have identified the paragraphs of the Magistrates’ Court Orders which I consider to be inconsistent with my orders.
I also propose to vary paragraph 5 of the proposed consent orders slightly. I do so only to make explicit what is plainly implicit in them, namely that Mr F Saari and Ms E may be in the presence of the children provided that this is supervised by the father and they are at the time in his care.
Accordingly, the order will read as follows:
For the purposes of paragraph 3 hereof, the father shall supervise the children, when they are in the presence of his partner, Ms E(Ms E) and/or the paternal grandfather, Mr F Saari (Mr F Saari) and for the avoidance of doubt Ms E and/or Mr F Saari may be in the presence of the children provided that this is supervised by the father and that they are at the time in his care AND IT IS NOTED that the father consents to this Order without admission as to its necessity.
Finally, at the hearing I drew the parties intention to the matters which I was required to explain pursuant to s 68P(2)(c) and (d) (which I have extracted above).
In this case, I am required not only to explain or have those matters explained to the mother and the father (s 68P(2)(i)) but also to Mr F Saari and Ms E (s 68P(2)(ii)). It is important that Mr F Saari and Ms E, amongst other things, understand the limits of and the extent to which my orders override the Magistrates Court Orders. A key matter for them to understand is the potentially serious sanctions which may follow for them if they transgress those orders other than as permitted by my orders. Depending on the severity of the breach, such sanctions may include the prospect of fines or imprisonment.[1]
[1] See, for example, s 123 of the Family Violence Protection Act 2008 (Vic).
Mr F Saari and Ms E were not represented in Court before me. However, counsel for the father agreed to make the explanations to them which are required by s 68P(2). In the event, I have directed that the legal representatives for the father provide such explanation to the father, Mr F Saari and Ms E. I have also directed that the legal representatives for the mother provide an explanation of the requisite matters to her.
To facilitate the explanation to Mr F Saari and Ms E, I have added a paragraph 13 of the proposed consent orders to include permission for the father to provide a copy of my orders to Mr F Saari and Ms E subject to the father’s legal representatives first having relevantly explained the operation of s 121 of the Act.
Pursuant to s 68P(2A), I do not propose to explain nor arrange for anyone to explain paragraphs 5 or 6 of my orders to either of the children. I am satisfied that having regard to all of the circumstances, including the age of the children, the complexity of the matters raised by the intersection between my orders and the Magistrates Court Orders, and the fact that my orders only vary the Magistrates Court Orders such that the children will be in the presence of Mr F Saari and Ms E when in the father’s care and under his supervision, it is not in the best interests of the children to receive such an explanation.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Davis. Associate:
Dated: 27 October 2021
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