Slack and Zimmer
[2010] FMCAfam 1069
•6 October 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SLACK & ZIMMER | [2010] FMCAfam 1069 |
| FAMILY LAW – Property dispute between de facto and wife of husband – husband unrepresented – husband resident in China – only assets available for distribution consisting of bank accounts “frozen” in Australia – inapplicability of usual methodology – consideration of just and equitable result. |
| Family Law Act 1975, ss.79, 79(4)(c) |
| Kennon v Kennon (1997) FLC 92–757 Egbert v Egbert [2010] FamCA 8 |
| Applicant: | MS SLACK |
| Respondent: | MR ZIMMER |
| Intervener: | MS E |
| File Number: | MLC 9085 of 2009 |
| Judgment of: | Burchardt FM |
| Hearing date: | 13 September 2010 |
| Date of Last Submission: | 13 September 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 6 October 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Weil |
| Solicitors for the Applicant: | Hogg & Reid Solicitors |
| The Respondent: | No appearance |
| Counsel for the Intervener: | Ms B. Tulloch |
| Solicitors for the Intervener: | Nicholes Family Lawyers |
THE COURT ORDERS THAT:
The funds presently held in trust by Messrs [H Solicitors] and [W Bank] be released:
(a)As to $159,000.00 to the Applicant;
(b)as to $61,000.00 to the Intervener; and
(c)as to any interest that has accrued to be divided in proportions of 77 ½ percent to the Applicant and 22 ½ percent to the Intervener.
The sums so released be categorised as partial property settlement by the Respondent to both the Applicant and the Intervener.
The Respondent pay:
(a)The Applicant’s costs fixed at $65,000.00; and
(b)the Intervener’s costs fixed at $65,000.00.
The children [X] born [in] 1993 and [Y] born [in] 2000 (“the children”) live with the mother.
The mother have sole parental responsibility for the children.
The mother have the sole parental responsibility for giving authority, signing documents and making all arrangements for the issue of the children’s passports.
Pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001, the Court certifies that it was reasonable for the parties to employ an advocate.
All extant applications be otherwise dismissed.
AND THE COURT NOTES THAT:
Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Slack & Zimmer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 9085 of 2009
| MS SLACK |
Applicant
And
| MR ZIMMER |
Respondent
| MS E |
Intervener
REASONS FOR JUDGMENT
Introductory
This is an extraordinary case which both members of counsel assured me was unique so far as they were aware. Although in formal terms it is a case involving the applicant, Ms Slack, as a former de facto of the respondent, Mr Zimmer, in truth it is a dispute between Ms Slack and
Mr Zimmer’s wife, Ms E, the intervener, about who gets how much of the funds presently held in trust by the solicitors for the applicant. Those funds presently amount to approximately $220,000.
For the reasons that follow I think that the applicant should have the orders she seeks in relation to the children, the subject of the application, and that the remaining $220,000 should be apportioned 77½ per cent to the applicant and 22 ½ per cent to the intervener, with none to the respondent, Mr Zimmer.
History
The applicant, Ms Slack, is 37 years old born [in] 1973. The respondent, Mr Zimmer, is 54 years old born [in] 1956.
Ms E, the intervener, was born [in] 1958 and is, therefore, 52. Like Mr Zimmer, she was born and grew up in China, where they married [in] 1984. They have a son, [Z], whose date of birth is not readily disclosed by the given materials, but it appears he is now 24 years old and was therefore born in 1986.
From the affidavit material filed by Ms E, which I accept in preference to the hearsay evidence of Ms Slack, it appears that
Mr Zimmer came to Australia in 1987 and Ms E followed him in 1989.
Thereafter, Mr Zimmer and Ms E lived together in Australia with [Z] until, it would appear, early 1995 according to Ms E’s affidavit sworn 18 March 2010 (paragraph 64) when Mr Zimmer returned to China.
Ms E has given evidence, which I accept, that at the time of
Mr Zimmer’s return to China he took with him all the cash that he and Ms E had been able to generate. There is some confusion as to whether the figure concerned was about $45,000 or about $55,000 but it was clearly something of that order. Ms E was cross-examined as to this matter and I found her answers persuasive, inasmuch that I accept Mr Zimmer took all their money even though I cannot say with precision how much it was.
At the time Mr Zimmer returned to China, the only other asset of any moment that had been generated in his marriage to Ms E was a block of shareholdings, the value of which at that time is not entirely clear. I accept that the shareholdings are now worth approximately $50,000. It is reasonable to infer, given stock market movements over time, that 15 years ago the shares would have been worth substantially less. Ms E says, in effect, that the shares are held on trust for [Z] until his marriage.
The purpose of the return to China by Mr Zimmer was to start a business and I accept that when he left Ms E was of the opinion that this was, so to speak, a joint marital exercise. She has deposed that she assisted Mr Zimmer in his business endeavours in China, but I found her evidence in this regard unconvincing.
According to Ms Slack, she commenced a relationship with
Mr Zimmer in 1995 and moved to China to be with him in 1998.
Mr Zimmer has deposed that she did not join him in China until 1998 and the relationship did not commence until then.
I do not accept that denial. It is the evidence of Ms E that her marriage came to an end in [omitted] 1996 when she discovered a photograph in her husband’s possession of Ms Slack and a child (paragraph 96, affidavit 18 March 2010).
It seems entirely consistent with the evidence as a whole that at whatever date the relationship between Mr Zimmer and Ms Slack commenced, it was closer to 1995 than 1998.
After Ms Slack relocated to China it seems clear to me that the relationship between Mr Zimmer and Ms E was basically at an end.
Ms E has given evidence, which I accept, that she has, in a rather perhaps inchoate way, tended to hope against hope that the relationship was not truly ended. She said that this was part of the reason why she never brought property proceedings against Mr Zimmer until she intervened in these proceedings. Some of that evidence had about it a ring of truth. It was given with evident emotion and considerable conviction.
Be that as it may, from at the very latest the time that Ms Slack went to China, she has lived until 2009 in a de facto relationship with
Mr Zimmer.
At all material times her daughter, [X], born [in] 1993, lived with Mr Zimmer, and I accept Ms Slack’s evidence that Mr Zimmer has treated [X] as his own child.
A child was born to Mr Zimmer and Ms Slack on [in] 2000, namely [Y].
In [omitted] 2007, following a lengthy history deposed to by Ms Slack, she was able to separate from Mr Zimmer, being at that time in Australia with both of her children. Quite how this came to pass is not in every respect clear. The arrangements for [Y]’s passport and subsequent travel are in my view not clearly explained.
Nonetheless, since [in] 2009 Ms Slack and her two children have been living in Australia in circumstances to which I shall return.
Notwithstanding the effective end of the marriage as long ago as 1996, Mr Zimmer has continued to provide for [Z], albeit in an ad hoc way. Nonetheless, he has in many ways, it would appear, been generous to [Z], although the extent of his capacity to do so is one of the matters in significant controversy in the proceeding.
The history of the proceeding
The proceeding was commenced by Ms Slack by an initiating application filed with the Court on 8 October 2009. On that day and on an ex parte basis I made orders which in part were designed to protect Ms Slack and the children, but also to freeze a sum of $360,000 held in accounts in the file in Mr Zimmer’s name at the [W Bank] branch [in], Melbourne. On 15 October 2009, once again on an ex parte basis, I made an injunction which relevantly had the effect of making $100,000 available to the applicant, such sum to be used by her to:
a)defray the costs of this proceeding and proceedings which I was assured would be issued in China and which I was assured would be expensive;
b)provide for the mother’s and children’s immediate needs, including the purchase of a vehicle.
On 14 December 2009, Mr Zimmer filed a response, an affidavit and a financial statement. Mr Zimmer roundly denied the very serious allegations of family violence made against him, adverted to psychiatric illness on the part of the mother and, importantly, denied having the very substantial wealth that Ms Slack had asserted he possessed in China. He also asserted that the funds that had been frozen in [W Bank] were not his but were funds which he held as a stakeholder for other persons.
On 13 November 2009, Ms E filed an application seeking to be joined as an intervener and seeking a property adjustment in accordance with s.79 of the Family Law Act 1975 (“the Act”). In due course, I granted her application to intervene.
On 31 March 2010, over the opposition of counsel for Mr Zimmer, I released a further $20,000 to each of Ms Slack and Ms E in respect of their legal costs.
Despite having filed an address for service as early as 16 November 2009 and having filed his response, affidavit and financial statement by December 2009, and a further response, financial statement and affidavits in February 2010 responding to Ms E’s intervention,
Mr Zimmer did not thereafter play any significant part in a positive sense in the conduct of the proceeding.
When the matter first came on for trial it was adjourned owing to alleged ill health on Mr Zimmer’s part. No further materials were filed thereafter until 8 September 2010 when his lawyers filed a notice of withdrawal. A letter dated 9 September 2010 to the Court from Francis Lim, the solicitor concerned, relevantly states:
“We advise that we were instructed by the Respondent in this matter, Mr Zimmer, that due to his poor health and the deteriorating medical conditions of his mother and sister, he will not be able to attend the hearing on 13 September 2010.
Further, as a result of his various liabilities, he does not have the financial capacity to pay for our costs of preparing for any further Affidavits in support or other costs of litigation although he has medical records and other evidence to substantiate his case.
In the circumstances, we have no other alternatives but to cease acting on behalf of the Respondent.”
Consistent with that letter, Mr Zimmer neither attended nor was represented at the trial.
The pool
The pool in this case is readily described. $360,000 was originally frozen and, as I have indicated, I have earlier released a total of $140,000 of it, $120,000 to Ms Slack and $20,000 to Ms E.
Both parties proceeded on the basis that the pool was effectively comprised by the $360,000, subject to several other matters to which I should make reference.
It is the case of both Ms Slack and Ms E that Mr Zimmer is extremely wealthy. As I have earlier indicated, he has denied this.
Although Ms Slack estimates Mr Zimmer’s wealth more extensively than Ms E, both say he is a multimillionaire.
The evidence of Ms Slack as to the style of life she enjoyed while living with Mr Zimmer in China, particularly from 2000 or thereabouts onwards, was compelling. I will never know how much money
Mr Zimmer actually has, or what resources are truly at his disposal, but I have no doubt that they are substantially greater than he deposes. The photograph of the dwelling where Ms Slack and Mr Zimmer lived is impressive and it suggests considerable wealth. Ms Slack’s evidence about her lifestyle in China, and perhaps even more tellingly her difficulties in adjusting to her impoverished lifestyle in Australia, is entirely believable.
Further, I should make it clear that I do not accept Mr Zimmer’s denial that the $360,000 that was subject to the freezing orders was his. He has deposed that those moneys belong to a number of identified individuals. Ms Slack knows those individuals and has given telling evidence in rebuttal. Ms E has purported to do so, albeit on a hearsay basis that makes her remarks inadmissible.
I have no doubt that the $360,000 did indeed belong to Mr Zimmer. As I said in passing in an interlocutory ruling, it seems inconceivable to me, even making every allowance for cultural issues and the like, that had this money truly belonged to other people, they would at least have been prepared to come forward and say so. Of course, it is notionally possible that they still do not know, if it was indeed their money, that it has been frozen, but in my view that possibility is not to be preferred. The evidence of Ms Slack and the inherent probabilities are against it.
A further issue that requires to be addressed is the shares presently in the possession of Ms E worth $50,000. These shares were, of course, property of the relationship between Ms E and Mr Zimmer in 1996. They are indeed still registered in his name. I do not accept that the shares in effect belong to [Z] to be transferred upon his marriage. After all, he may never marry.
Nonetheless, in circumstances where I am involved in truth in a contest not between Mr Zimmer and Ms E but between Ms E and Ms Slack, and in which Ms Slack has made no contribution of even the remotest sort to the acquisition of these shares, it seems to me utterly inappropriate to include them in the pool. They are relevant as a future resource but they are not in my view properly to be considered as part of the pool in this dispute. This is an extraordinary case involving extraordinary circumstances. In the circumstances I have described it would be utterly inequitable to assess the outcome of the dispute as to the money presently available by reference to these shares, the origin of which is now so historical.
Likewise, Ms E’s superannuation, in the sum of approximately $18,000, owes nothing whatsoever to Ms Slack and indeed as far as I can see, is likely to owe nothing whatsoever to Mr Zimmer. Ms E’s evidence was that she started to retrain in the 1990s and took up full-time work towards the end of that time. It is far more probable that such superannuation as she has been wholly generated by herself post-separation. Once again, in the extraordinary circumstances of this case, it would be wholly unjust and inequitable to include that sum in the pool.
In truth what we are arguing about is who gets how much of the $360,000.
Contribution
I have not dealt in any detail thus far in my judgment with the issue of the domestic violence alleged by Ms Slack against Mr Zimmer.
It should be noted that Mr Zimmer in his, albeit untested, affidavit asserted a history of mental ill health and self-harm on the part of
Ms Slack and said that these qualities explained what he described in essence as the fantasies that she had put forward as to the violence.
There is medical evidence on the file corroborative of Ms Slack’s assertions as to domestic violence, but I note that all this evidence necessarily derives from Ms Slack alone.
I further note that Ms Slack has deposed that she was abused by her brother as a child and that she attempted to commit suicide in China in about 2000.
Even approaching Ms Slack’s account with the hesitation that it seems very possible that her mental health has from time to time been fragile at best, it is clear there has been domestic violence. That this is so is clear from the disclosures made by [X] and [Y] to Department of Human Service (“DHS”) officers, if from nothing else.
I have also heard the evidence of Ms Slack’s treating social worker,
Ms F. Ms F has offered the view that Ms Slack is suffering from post-traumatic stress disorder. Ms F made it clear that she was a social worker, not a psychologist, and I am not by any means convinced that she is necessarily fully professionally qualified to offer the opinion that she did.
Nonetheless, bearing in mind the ultimately uncontradicted evidence of Ms Slack, and even approaching it with caution, it is clear that she was the subject of very extensive and severe domestic violence during her relationship with Mr Zimmer.
Furthermore, the Court can in my view properly take account of its own observations. During the currency of the case, Ms Slack presented as a person under great strain. When she gave her evidence she turned herself so far away from the bar table that she was not even looking at me, but rather at a point closer to the back rear wall. She was extremely low in pitch often, and she was often in tears. Even when her evidence was completed she was clearly very distraught. She remained so throughout the final submissions.
I do not purport to have any skill in psychiatric assessment and I approach the demeanour of Ms Slack with an appropriate measure of caution as a result. It is, however, proper for me to say that the diagnosis of post-traumatic stress disorder is certainly consistent with the violence that Ms Slack and her children have revealed to DHS and her demeanour in Court would certainly be consistent with such a diagnosis.
This being so, I am inclined to accept the arguments advanced by counsel for Ms Slack that this is indeed a Kennon v Kennon (1997) FLC 92–757 case. There should be an adjustment in her favour because her contribution to the relationship was made in circumstances that were dire.
Turning to the question of Ms Slack’s financial contribution, the position is more opaque. She has deposed that she worked for most of the time, if not all of the time, she was in China and that her earnings were substantial but were wholly abstracted by Mr Zimmer.
In this regard, when she came to Australia she was left in the ultimate with $2,000 cash given to her by Mr Zimmer and a further $10,000 (approximately) withdrawn from a credit card account. Whether this account was hers or Mr Zimmer’s is not in my view material.
The difficulty is, of course, that the $360,000, which is all there is left now to argue about, was plainly predominantly created by Mr Zimmer. That is the logical corollary of accepting Ms Slack and Ms E’s assertions as to his wealth. I note that in her affidavit filed 8 October 2009 Ms Slack described Mr Zimmer’s average earnings over the time they were together as being in excess of $1 million per year.
This sits, therefore, uneasily with the proposition that the $360,000, which Ms Slack says was brought by agreement to Australia for investment here, owes any substantial amount to the relatively (in the scheme of things) minor earnings that she made.
Nonetheless, it is clear that Ms Slack contributed materially financially to the parties during their relationship in China and had the predominant role as a care-giving mother, although I note the presence of various servants who played a more than nominal role in this regard.
Counsel for Ms Slack submitted that I should adjust the contributions by 10 per cent for the Kennon factor and a further 50 per cent for the contributions made by Ms Slack.
Counsel for Ms Slack sought to suggest that Ms E had made no material contribution to the funds presently under consideration. In a crude sense that may be at least in large part correct.
It is certainly the case that Mr Zimmer took all the funds then available with him to China in 1995. The evidence to the effect that all this was then lost by Mr Zimmer in a business misadventure was by no means wholly clear or convincing. This is so because, on the one hand,
Ms Slack says that she has knowledge of this but, on the other hand, she is at pains to say that the finances of the parties were always wholly controlled by Mr Zimmer and she never even saw the accounts, including bank accounts.
In my opinion, the most that can be said is that Ms E’s and
Mr Zimmer’s prior funds were certainly advanced wholly to Mr Zimmer when he returned to China in 1995 and that they must have played some part in establishing him in China, although it is now wholly impossible to disaggregate that initial contribution in assessing the uncertain, although significant, assets that Mr Zimmer has in China.
Where the submissions made by Ms Slack are wholly misconceived, in my opinion, is in their failure to acknowledge the role that Ms E played until separation and thereafter continued to play as the mother of [Z], at least until he turned 18 in 2004. The fact is that Ms E brought up [Z] on her own without any financial assistance from Mr Zimmer after separation. Section 79(4)(c) expressly contemplates that the Court should have regard to:
“…the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent.”
That contribution did not cease in 1996, but continued until 2004 and in a very real sense until now because, although he is 24, [Z] is still not apparently making any significant income.
In this regard, I would interpolate and say that on the materials presented to the Court, it is clear that [Z] is at best a dilettante [in his field] and I accept that his income is but little. I suspect he is thoroughly spoiled by his father, who appears to be making significant provision for him. As I have already said more than once, this is an extraordinary case. Issues of contribution are not to be assessed as between Mr Zimmer and Ms Slack or even Mr Zimmer and Ms E. That is because the ultimate issue is not between Mr Zimmer and either of those people, but between the two women. In my view, it is not practicable to allot notional figures to the contributions made by the parties. In my view, it is only possible to approach this case in the ultimate on a global basis, taking all relevant factors into account.
Having said that, it is clear that Ms Slack is entitled to an adjustment in her favour in respect of the Kennon factor, over and above any question of contribution generally. It is also clear that to the extent, impossible as it is to quantify, that Ms Slack and Ms E contributed to the $360,000 now under consideration, it is more probable than otherwise that the contribution of Ms Slack is greater because of the times at which it took place and the amounts likely to have been involved. In this regard, it should be noted that whereas the financial contribution made by Ms E was the sum taken to China in 1995, I accept the income earned as asserted by Ms Slack during her time in China, which was substantially greater and over a protracted period of time. Her earnings also included considerable benefits, it would appear, in terms of school fees for the two children at the school at which Ms Slack worked.
The section 75(2) factors
Here Ms E’s position is clearly less compelling than that of
Ms Slack.
It is true that Ms E is 52 and Ms Slack is only 37.
Nonetheless, despite the difficulties that Ms E has faced, and she deserves every credit for the fortitude with which she has borne them, she has an income of approximately $50,000 per year which, despite vicissitudes, appears to be relatively well established. [Z] does not seem any longer to be a significant financial burden upon her, although I have no doubt she helps him, as mothers do. [Z] appears to receive generous, albeit intermittent, support from Mr Zimmer.
There is nothing to suggest that Ms E is in anything other than satisfactory health. She has a very modest but not wholly negligible sum of superannuation standing to her credit.
Ms Slack, on the other hand, is in dire circumstances. Whatever the formal diagnosis of her condition is, I accept that she is seriously unwell and I accept that the prospects of her being able to return to work are so uncertain as to be entirely speculative. She is existing on very modest statutory benefits and is clearly struggling to come to grips with the change in her circumstances, from a lifestyle of opulence to a lifestyle of poverty.
It must be said that some of Ms Slack’s decisions since returning to Australia seem to me to reflect an ongoing incapacity by her to readjust to her new and more straitened circumstances. I am prepared to accept that for the reasons she gives it was appropriate for her to have the children enrolled in private education. This is to their benefit psychiatrically and of course it will greatly enhance their future prospects. Nonetheless, if you choose to enrol children at a private school, it costs a lot of money. This is the sort of decision that people are entitled to make but of which they cannot complain of the consequences.
The expenditure on [extra curricular activities], which the children do not in fact actually need as a matter of academic necessity (and that was conceded by Ms Slack in cross-examination), suggests a certain lack of insight.
Further, I note that although I was initially informed that the vast bulk of the $100,000 initially released would be used to prosecute proceedings in China, the mother did not live up to that assertion and I regard this conduct as unsatisfactory.
Having said that, it is clear that not only does Ms Slack face the most difficult circumstances financially, she is bound to provide for the needs of her two children for some time to come and in the case of [Y] for another eight years. This is a significant factor to be weighted in her favour.
The fact that the mother obtained approximately $12,000 on her resettlement in Australia is a matter, in my view, of no moment because that sum was completely absorbed by the process of resettling and trying to initiate these proceedings. Although I have not said so thus far, I make it clear that it is for these reasons I have not included that sum in the pool of assets.
It should be also noted that both parties have very substantial legal bills to pay and I accept that the size of these bills, which would otherwise be regarded as extravagant, have been in most part generated by the conduct of Mr Zimmer.
I have been informed by counsel that Ms E has a total bill of $55,000, of which $20,000 has been paid. She will have to pay a further $35,000.
Likewise, I have been informed by counsel that Ms Slack has a further $55,000 to pay over the sum she has already paid.
What should the outcome be?
As I have earlier indicated, this is not a case in which it is practicable, because of the extraordinary circumstances, to apply the usual four-step formula in a straightforward way. It comes down to balancing all the factors to which I have referred and then, in the ultimate, producing a result that is just and equitable.
Counsel for Ms E sought a 60/40 split in Ms Slack’s favour. Counsel for Ms Slack, by way of contrast, suggested that Ms E should receive 10 per cent of the $360,000 or at the absolute utmost some 30 per cent thereof.
It is readily apparent that these are not areas of precision.
Nonetheless, in the ultimate, I think the proper result is that Ms E should receive 22 ½ per cent of the total $360,000 pool, of which $20,000 has already been released for legal fees.
The remaining sums will, of course, be paid to Ms Slack. Notionally Ms Slack receives about $279,000 of which $120,000 has already been released.
The net effect of this conclusion will be that of the approximately $220,000 available, about $61,000 will be dispersed to Ms E and $159,000 to Ms Slack. She will receive a net sum of approximately $104,000 after legal fees and Ms E will receive approximately $26,000.
Neither of these sums will be sufficient to alter irrevocably the financial circumstances of either of these two parties. It is one of the misfortunes of the circumstances in which they find themselves that this is so. I have borne in mind the remarks of Cronin J in
Egbert v Egbert[2010] FamCA 8 at [76]. His Honour said:
“It is important to take into account the terms of the order. As I pointed out earlier, in a very small pool, the position is the division is very difficult. Having regard to the litigation and the costs of it, the significant portion of the equity of both parties in their entitlements is going to be eaten away with legal fees. There is little I can do about that. However, in a small pool, to achieve a just and equitable outcome, it is important to remember that it is not the percentage that is relevant but the underlying value.”
Having done the best I can, I believe that the division I am going to propose will achieve that outcome.
In addition, obviously, to the retention by Ms E of her superannuation and shares, Ms Slack will retain the car she bought with the moneys initially dispersed to her, which even on her own figures represents approximately another $20,000 worth of assets.
In all the circumstances, this outcome, unsatisfactory as it clearly is in many ways, represents the best I am able to do to produce a just and equitable outcome in a case the like of which I have not previously seen and which, it would appear, two experienced members of counsel have not experienced either.
I have decided that the orders in this case should reflect partial property settlement only. It is clear that if Mr Zimmer returns to Australia there would be much more to determine as to what a final property outcome should be.
I have prepared draft minutes of orders to give effect to these conclusions and will hear from the parties before making them final.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 6 October 2010
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