State Central Authority v Papastavrou
[2008] FamCA 1120
•22 December 2008
FAMILY COURT OF AUSTRALIA
| STATE CENTRAL AUTHORITY & PAPASTAVROU | [2008] FamCA 1120 |
| FAMILY LAW – CHILD ABDUCTION – Hague Convention |
| APPLICANT: | State Central Authority |
| RESPONDENT: | Ms Papastavrou |
| FILE NUMBER: | MLC | 3203 | OF | 2008 |
| DATE DELIVERED: | 22 December 2008 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 15 October 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Sweeney |
| SOLICITOR FOR THE APPLICANT: | Victorian Government Solicitor |
| COUNSEL FOR THE RESPONDENT: | Ms Nikou SC and Mr Strum |
| SOLICITOR FOR THE RESPONDENT: | Nicholes Family Lawyers |
Orders
That the application of the State Central Authority be and is hereby dismissed.
IT IS NOTED that publication of this judgment under the pseudonym SCA & Papastavrou is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 3203 of 2008
| STATE CENTRAL AUTHORITY |
Applicant
And
| MS PAPASTAVROU |
Respondent
REASONS FOR JUDGMENT
This is an application by the State Central Authority, filed 9 April 2008, seeking the return to Greece of the children S born … May 1999 and E born … February 2003, pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”). As far as Australia is concerned, the Regulations implement the Convention on the Civil Aspects of International Child Abduction adopted by the delegates to the XIV Session of the Hague Conference on Private International Law in October 1980 (“the 1980 Convention”). The 1980 Convention entered into force on 1 December 1983 and was ratified by Australia with effect from 1 January 1987.
The starting point is reg 14 which provides that where a child is wrongfully removed from to Australia then the responsible Central Authority may apply for an order for the return of the child to the country (“the requesting state”) in which the child was habitually resident immediately before the wrongful removal. The court to which the application is made must order the return of the child to the requesting state if certain preconditions are fulfilled and unless one or more of the exceptions to mandatory return are made out. If an exception does apply, there is a discretion not to return the child.
The Regulations and the 1980 Convention which the Regulations implement are concerned with the appropriate forum for adjudication of parenting matters, including parental responsibility and relocation, rather than what is in the immediate best interests of a subject child. As has been observed by the English court[1]
“In these cases, the authorities make it clear that in normal circumstances the courts of the country of habitual residence are best to determine issues relating to the welfare of the child, primarily because the best outcome for the child’s future will be identified by reference to past events and the physical, emotional, social and cultural milieu in which the family have lived. All these matters, including in particular any resolution of factual disputes relating to past events, are, prima facie, more easily addressed in courts of that State.”
[1] per Baron J in Re W [2004] 2 FLR 499 (at p 509)
The Respondent is the Mother of the children (hereinafter “the Mother”). The requesting parent who made the relevant request and at whose behest the State Central Authority for Victoria makes the application, is the children’s Father, Mr G (hereinafter “the Father”).
The Mother does not challenge the assertion that her removal of the children to Australia is wrongful within the meaning of the Regulations. That is, she concedes:-
a)That Australia and Greece are both signatories to the Convention on the Civil Aspects of International Child Abduction (“the Convention”);
b)The children are under the age of 16 years;
c)The children were habitually resident in Greece immediately before her removal of them in Australia;
d)The children were removed in breach of the custodial rights of the Father; and
e)The Father’s application was filed within one year of the wrongful removal.
However, by her response and cross-application, the Mother resists the Central Authority’s application by asserting that there is a grave risk that the return of the children to Greece will expose them to physical or psychological harm or otherwise place them in an intolerable situation within the meaning of re.16(3)(b) of the Regulations (Article 13(b) of the Convention).[2]
[2] The Mother in her response initially also relied upon the exception set out in reg.16(3)(a)(ii) of the Regulations but abandoned this argument at trial.
The issue for me is whether the Mother has made out that grave risk exception and, if she has, whether I ought to exercise the discretion which would then be available to me to decline to send the children back to Greece. As will become apparent, determination of the issue will involve an assessment of evidence in relation allegations by the Mother of domestic violence, the Mother’s health, the protection available to the Mother in Greece, the possibility that the Mother will be incarcerated as a result of having removed the children in breach of Greek laws and how any risks that I find emanate from these matters can be ameliorated by crafting conditions precedent to any return of the children to Greece. The exercise of my discretion to refuse to return the children to Greece will involve even broader considerations.
There was no suggestion that the children should be treated separately. The parties agree that the same considerations apply to both children.
If the children are ordered to return to Greece, the Mother has said that she will accompany them and that she wishes to retain primary care of the children.
Background
The Father is 41 years old. The Mother is 37 years old. Both are of Greek origin. The Father was born in Greece and the Mother was born in Australia, where her parents and siblings continue to reside.
In 1996 the Mother travelled to Greece. The Mother and Father met in Greece in about 1998. They married in Greece in January 1999 and lived in Greece for the duration of their marriage.
Both children were born in Greece. The family’s home in Greece was the home of the Father’s parents.
There is some dispute between the parties as to the date of their separation. The Mother alleges that the parties separated on 8 February 2007. The Father alleges that separation did not take place until April 2007. In the event, nothing turns on this dispute. The context of the separation and the facts leading to it are issues in dispute which form the gravamen of this case.
The Mother alleges that separation occurred after she had sustained nearly three years of serious physical abuse at the hands of the Father. Moreover, she alleges that such incidents had, on occasion, occurred in the presence of both children. She states that it was as a result of an incident in February 2007 just prior to separation that she asked the Father to leave the property. She alleges that the Father subsequently left the premises pursuant to her request some days later.
Subsequent to the parties’ separation (whether that be February or April 2007), there was one, albeit very serious, alleged incident of domestic violence. The Mother claims that this occurred on 14 September 2007 and involved a serious assault by the Father upon S who was then eight years old.
The Father, for his part, denies that he has ever been violent to the Mother or the children.
In terms of the Father’s contact with the children, the Mother states that, subsequent to separation, she and the Father entered into an oral agreement to be flexible in terms of the arrangements made for the Father to see the children. The Mother states that she agreed to the Father’s proposal regarding his contact with the children because she was fearful of him. She states that the Father saw the children on average once a week at a cafeteria from the date of separation until 14 September 2007. She states, that subsequent to 14 September 2007, (the date of an alleged serious assault) the Father stopped communicating and ceased all contact with her and the children. She states that he had had no contact with them from that date until they arrived in Australia (when he spoke to them on the telephone). The only evidence from the Father regarding his contact post-separation is that:
[M]y contact with my children was continuous, for which reason I kept the keys of our house.[3]
[3] Prosecution of the Father, sworn 29 November 2008 and annexed to the originating application.
The Mother states that the day after the alleged incident in September 2007, she had a home visit from her doctor, a Dr MK. It is the Mother’s case that upon informing the doctor of what had occurred the previous day he suggested she return to Australia for recuperation. She states that he advised her that she required the emotional and physical support of her family. The Mother states that on the same day that she saw the doctor, she told the Father of the doctor’s advice. The Mother alleges that she also told the husband of her intention to leave Greece with the children and to travel to Australia for “as long as it takes for me to get better.” She alleges that the Father responded to the effect of
“I don’t care I am not going to continue to support you financially and have you and your brats to stay in my home; you and your brats can go to hell as far as I am concerned.”[4]
[4] Mother’s answer and cross-application, sworn 24 April 2008
The Mother states that she subsequently attempted to tell the Father on numerous occasions the specific detail as to when she and the children would be leaving Greece but he refused to answer her calls. She states that her Mother also attempted, unsuccessfully, to speak to the Father and his parents.
The Mother and children left Greece for Australia on 13 November 2007.
The Father denies any prior knowledge of the Mother’s plan to leave Greece with the children. His case[5] is that he visited the former matrimonial home in T on 17 November 2007 to visit the children and no-one was home. He says that he returned the next day, on 18 November 2007, and still could not locate the children. As a result he searched their rooms and discovered their clothes, personal belongings and passports had been removed. On 19 November he telephoned the Mother’s parents in Australia and was advised that the Mother had moved to Australia.
[5] Found within the application of the Central Authority, dated 9 April 2008, paragraph 6
On 29 November 2007 the Father swore an affidavit suing the Mother in respect of the abduction and asking for her to be punished “according to the law”. These proceedings have been the subject of some expert evidence which I will discuss below.
On 29 November 2007 the Father also signed an application to the appropriate authorities under the 1980 Convention requesting the children be returned to Greece. In due course, the Hellenic Ministry of Justice, Athens, in its capacity as Central Authority for Greece, made a request of the Australian Central Authority for an order for return of the children to Greece.
The application in the present proceeding was duly filed in this court on 9 April 2008. Orders have been made for the safe custody of S and E pending a final determination, the delivery up of the children’s passports and the filing of documents and evidence in readiness for the trial.
Evidence relied upon
The Central Authority rely upon the following evidence:
a)Form 2 Application, dated 9 April 2008
b)Affidavit of the father, sworn 23 May 2008
c)Affidavit of Teresa Porritt, sworn 9 July 2008
d)Affidavit of Teresa Porritt, sworn 23 July 2008
e)Affidavit of Teresa Porritt, sworn 15 August 2008
f)Email received from Ms L of Commonwealth Central Authority, dated 11 July 2008, forwarding email from the Greek Central Authority, with attachments[6],
g)Letter from the Father, dated 7 July 2008[7].
[6] Exhibit SCA 1.
[7] Exhibit SCA 2.
The Mother relies upon the following evidence:
a)Her answer and cross-application, sworn 24 April 2008
b)Affidavit of the Mother, sworn 30 June 2008
c)Financial statement of the Mother, sworn 8 May 2008
d)Affidavit of the maternal aunt, sworn 8 May 2008
e)Affidavit of the maternal grandmother, sworn 8 May 2008
f)Affidavit of Mr SM (translator) sworn 5 May 2008, annexing translation of notarised sworn statement by Dr MK (the Mother’s general practitioner in Greece)
g)Affidavit of Mr SP (Ear, nose, throat, head and neck specialist), sworn 8 May 2008 who also gave oral evidence and was cross examined
h)Affidavit of Mr SM (translator) sworn 2 July 2008, annexing translation of notarised sworn statement by Professor Theofano Papazisis (professor of law in Greece).
i)Affidavit of Demetrius Papaphilippou (lawyer in Greece), sworn 4 July 2008
j)Second affidavit of Demetrius Papaphilippou, filed 11 July (no date of swearing)
k)Third affidavit Demetrius Papaphilippou, sworn 1 September 2008
l)Affidavit of Mr CS (translator), sworn 8 September 2008, annexing sworn affidavit of Professor Theofano Papazisis.
The respondent Mother also tendered written submissions[8] and a chronology[9].
[8] Exhibit M2
[9] Exhibit M5
The only witness to be called or cross examined was Mr SP.
Litigation History
These proceedings first came before me in the duty list on 28 April 2008 when I gave directions, including listing the matter for final hearing on 11 July 2008. At a mention before me on 18 June 2008 the orders I made again included an order that the proceedings remain listed for final hearing on 11 July 2008. It is thus necessary to outline why these proceedings did not, in fact, finish before me until 16 October 2008.
The matter did come before me on 11 July 2008 and in fact proceeded on the morning of the 11 July as a final hearing. Both parties agreed that since the Mother conceded a wrongful removal of the children, the appropriate way to proceed was for her to lead her case on the ‘grave risk’ exception with the Central Authority responding. Counsel for the Mother therefore proceeded to put her case. There was no viva voce evidence and there was reliance on affidavits and submissions only. The Mother placed reliance upon the evidence of Mr Papazisis, Professor of Law in Greece, and Mr Papaphilippou, lawyer in Greece, as to the difficulty of ensuring adequate protection for her and the children in Greece upon a return (as to which, see below). The Mother closed her case and it was at the commencement of the case of the applicant, the Central Authority, that it was indicated by Counsel for the Central Authority that they had “steps in train” to obtain further information or evidence on the issue of the practice in Greece in domestic violence cases (the exact areas upon which it was sought to adduce further evidence are outlined in paragraph 1 of my reasons of 11 July 2008). It became apparent through discussion that what was actually being sought by counsel was an adjournment in order to obtain that further evidence.
I delivered my reasons for allowing the adjournment at that time. Suffice it is to say that I considered that it was in the interests of justice to allow the Central Authority to obtain evidence on the ability or willingness of the requesting state to implement their domestic violence legislation (particularly when some of the Mother’s evidence had arrived somewhat late in the day; the affidavit of Mr Papaphilippou was only filed that day). It was agreed by the State Central Authority that the Mother would be permitted to re-open her case on the adjourned hearing. Further, at that stage, it appeared that the matter could come back to court somewhat more speedily (beginning of August) than has now transpired.
The matter came back before me for mention on 31 July 2008 and it was apparent that the matter could no longer proceed at the beginning of August as had been hoped. The next available date was the 13 October 2008 which is when I set it down for hearing.
On 13 October 2008 the matter again proceeded before me. I will comment later about the evidence the Central Authority had managed to procure by that date. I do note here however, that the Central Authority cannot be heard to say that they have not had the opportunity to garner the appropriate evidence in this case.
On that date the matter again proceeded with short submissions by Counsel for the Mother, followed by the submissions of Counsel for the State Central Authority with a full right of reply for the Mother. However, on that occasion, as a result of Mr Sweeney’s submissions for the Central Authority it became apparent that there was an issue with the evidence of a medical specialist, Mr SP’s, upon whose evidence the Mother relied concerning her health. It was apparent that senior counsel for the Mother had overstated her case and was contending for an interpretation of evidence that was simply not open to her. Eventually and notwithstanding that the Mother’s case was closed, senior counsel for the Mother made an oral application to call Mr SP to give evidence to “clarify” his report. Mr SP fortunately was able to attend court within two days, on 16 October. Bearing in mind the significance of the issue and the fact that I was satisfied that the respondent Mother ought not be prejudiced by the error of senior counsel who appeared on her behalf, I acceded to the adjournment application so the Mother could re-open her case. Evidence and submissions were concluded on 16 October 2008.
There were delays in the presentation of the case but none that, in hindsight, I consider were unwarranted. As was observed by Gummow, Heydon and Crennan JJ in the High Court decision of MW v Director-General, Department of Community Services[2008] HCA 12 in the context of appropriate procedure for proceedings under the Regulations such as the present case:
46. […] an application for a return order under reg 16 of the Regulations is a special type of proceeding. It is apt to achieve what in Australia is a final result upon the application for return of a child to another Convention country. To emphasise these matters is not to encourage the amplitude of the evidence to which the House of Lords referred in In re M (Children) (Abduction: Rights of Custody)[20]. […]
47. Regulation 15(2) obliged the Family Court, "so far as practicable", to give to the application by the Authority "such priority" as would "ensure that [it was] dealt with as quickly as a proper consideration of each matter relating to the application allows". If within 42 days of its filing the application had not been determined, the Authority would have been empowered by reg 15(4) to seek from the Registrar a written statement of the reasons for the absence of a determination. Regulation 15 reflects the exhortation in Art 11 of the Convention that "judicial or administrative authorities" act "expeditiously" in these matters and the reference in Art 7 to "the prompt return of children".
48. The judicial or administrative authorities which decide return applications in some Convention countries may not, under their legal systems, have the obligations to provide the measure of procedural fairness and to give reasons which generally apply in common law systems and which were observed here by the Family Court. Thus, in this country, the requirement of promptitude can be an onerous one.
49. Nevertheless, prompt decision making within 42 days is one thing, and a peremptory decision upon a patently imperfect record would be another.
Speed and efficiency are appropriate, undue haste is not.
THE GRAVE RISK EXCEPTION
Regulation 16(3)(b) provides that a court may refuse to return a child to its home country if a person opposing return establishes that there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. Practically, it mirrors the provisions of Article 13(b) of the Convention which provide:-
Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that … there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The (respondent) Mother bears the onus of proving, on a balance of probabilities that the return of the children to Greece pursuant to the Regulations will expose the children (or either of them) to a grave risk of physical or psychological harm or otherwise place the children (or either of them) in an intolerable situation.
The proper interpretation of Regulation 16(3) has been settled by the majority of the High Court, comprising Gaudron, Gummow and Hayne JJ in the cases of DP v Commonwealth Central Authority; JLM v Director-General NSW Department of Community Services (2001) 206 CLR 401. The principles to be gleaned from the reasons of the majority are:
(a)The first task is to determine whether the evidence establishes that there is a grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. That requires some prediction, based on the evidence, of what may happen if the child is returned.
(b)Certainty of harm is not required: what is required is persuasion that there is a risk which warrants the qualitative description ‘grave’. The risk that is relevant is not limited to harm that will actually occur, it extends to a risk that the return would expose the child to harm.
(c)Because what is to be established is a grave risk of exposure to future harm, it may well be true to say that a court will not be persuaded of that without some clear and compelling evidence. The bare assertion, by the person opposing return, of fears for the child may well not be sufficient to persuade the court that there is a real risk of exposure to harm.
(d)The disruption, uncertainty and anxiety that will likely recur, and may well be magnified, by having to return to the country of habitual residence is not sufficient to establish the grave risk exception.
(e)If the grave risk exception is established, the Court has a discretion to refuse to return the subject child. Matters that bear on the exercise of that discretion include formulating conditions on which return may occur, whether judicial proceedings will take place in the country of return and whether there are suitable interim arrangements for the child. If return is ordered, care must be taken to ensure that the conditions are moulded so that they can be met voluntarily and/or can readily be enforced.
And to quote from paragraph 41 of the majority decision:-
“In a case where the person opposing return raises the exception, a court cannot avoid making that prediction by repeating that it is not for the courts of the country to which or in which a child has been removed or retained to inquire into the best interests of the child. The exception requires courts to make the kind of inquiry and prediction that will inevitably involve some consideration of the interests of the child.”
Summary of the Mother’s position
The Mother, at trial, relied essentially upon five contentions for which she provided evidence to establish the ‘grave risk’ exception. They were:
a)direct violence (physical and psychological abuse) against the child S and the Mother as observed by the child E and the harmful effects of the violence against the Mother and the children in Greece by the Father;
b)the likelihood of the Father continuing to perpetrate violence against her in the future and the effect upon her and the children of further abuse;
c)the medical evidence of a medical condition, ‘positional vertigo’, the cause of which she ascribes to the violence perpetrated by the Father against her, and particularly blows she sustained to her head. It is her case that this condition increases her vulnerability to greater injury, were she exposed to further domestic violence ;
d)the inadequacy of the practice of the law and policing in Greece in relation to domestic violence and the consequent lack of protection available to her in Greece and
e)the evidence as to the likelihood of her incarceration upon her return due to the Father’s prosecution of a criminal action against her in Greece.
I shall consider each of the following factual assertions:-
• the alleged domestic violence,
• the Mother’s alleged vulnerability due to her medical condition;
• the alleged inadequacy of protection for the Mother in Greece;
•the possibility of the mother being incarcerated upon her return to Greece –
before I go on to examine the law relating to the exception and the operation of any resultant discretion.
The allegations of domestic violence
In her response and cross-application the Mother gave an account of extensive domestic violence directed toward her and on at least two occasions, toward her eldest child, S. The violence she alleges occurred against her, often, she says took place in the presence of the children. She contended that the grave risk of harm to the children would also arise in the context of the Father’s physical abuse of S and the likelihood that he will perpetrate further abuse upon him as well as E as she grows up.
The Mother provided the following history of domestic violence:
a)In June 2004, the Father commenced assaulting her. She states that this began with slaps to her face, pulling her hair and causing bruising to her body by punching her arms and legs. She alleges that, these assaults increased in severity as used her as a ‘punching bag’. By her account, he appeared to enjoy inflict pain and suffering upon her.
b)By February 2005, this abuse had progressed to the Father hitting her on the back of her head with his fists. This continued in June and July 2005. This led, in August 2005, to the Mother beginning to suffer from medical problems, such as experiencing dizzy spells and losing her balance. She gave an account of her health at this time:
“At times I could not walk in a straight line or stand up for more than short periods without falling. Ending, getting up suddenly and turning the head from left to right increased the symptoms.”
c)In September 2005, the Father hit her on the back of the head. This was in the presence of her sister, the maternal aunt, who was visiting her from Greece at that time. Her sister gave evidence of this assault deposing that she had to intervene to stop the assault.
d)In November 2005 the Father hit her on the back of the head. This incident was witnessed by her Mother, the maternal grandmother, who intervened to stop the Father’s assault. The Mother locked herself in the bathroom and the Father punched the bathroom door causing a hole in the door. He stated to the Mother, “that will be your head next time”.
e)In 2005-6, the Mother travelled to Australia with the children for 3.5 months. The Father promised he would never assault the Mother again. The Mother believed him and returned to Greece with the children.
f)In November 2006 the Father assaulted the Mother again, pulling her hair and hitting her so hard to the back of the head that she lost consciousness. At the time the Mother was pregnant with a third child. The Father pressured the Mother into an abortion.
g)In January 2007 the Father assaulted the Mother. He entered the bedroom and locked the door and said he wanted to talk to the Mother. He then verbally and physically abused her, slapping her on the face, throwing her on the bed, grabbing her by the hair and dragging her across the floor by the hair. S heard the Mother calling out for it to stop and he entered the room through the balcony door to intervene. At this point the Father ceased the assault.
h)In February 2007, the Father commenced attacking the Mother with verbal abuse and this progressed to physical abuse. He pulled her hair and pounded her with his fists. He struck the Mother to the back of her head. This was all in the presence of E. E wrapped her arms around her Mother and shouted “stop hitting my mummy, leave mummy alone”. At this point the Father retreated and went to sleep. This incident lead to separation.
i)The last assault occurred on 14 September 2007, post-separation, after the Father had driven the Mother home from hospital where she had had some diagnostic tests. In the car the Father began to be abusive towards the Mother as well as cross with the children who were in the back of the car. Upon returning home, the Father began to verbally abuse the Mother. The Mother’s description of this event follows:
“The husband became abusive towards me and my son stepped in and stated that “mummy is sick, we just got back from hospital”. The husband responded “don’t you get involved you fucking lout and useless piece of shit.” My son asked him to leave us alone and not to swear at him, however the husband then chased our son and caught him in his room. I saw the husband pick my son up and throw him against the floor and then raised his fist to hit him. At that time I intervened and prevented my son from being hurt further. The husband then turned his anger onto me and punched me all over my body. My son to protect me, ran into the kitchen and returned with a small table knife. The husband stopped hitting me and froze. My son is normally a placid child and I could not believe that my son would do this and could only imagine the extent to which he had been pushed to react this way. My son handed the knife to me at my request. I then asked the husband to leave. At the time my daughter was in the lounge room crying as she was frightened and confused.”
The Mother produced photographs[10] which allegedly show the bruising to her shoulders as a result of this incident and bruising to her son’s abdomen. The Mother alleges that as a result of this incident she called the police. She states that they arrived but said that as the Father had left the property they were not able to do anything. They suggested she attend at the police station to make a formal complaint.
[10] Exhibit M3
The Mother states that she did subsequently attend the police station to make a formal complaint. In her response it is not clear exactly when this was but it was accepted by counsel for the Mother that this was approximately a week later, as described by the maternal grandmother in her affidavit at paragraph 23. The Mother alleges that the police told her they could do nothing for her, that she should change the locks and that they could talk to the Father. The Mother responded that this could aggravate the Father. The police replied that she should report the domestic violence if it reoccurred.
The Mother relies upon her mother (“the maternal grandmother”) and her sister (“the maternal aunt”) as witnesses in support of these allegations. They have each provided an affidavit corroborating her version of events.
Counsel for the Mother conceded that neither Dr MK nor Mr SP could lend support to the Mother’s case regarding the occurrence of domestic violence since they were merely repeating histories of abuse given to them by the Mother. However, I do note that Dr MK states in his affidavit, consistent with the Mother’s evidence, that he examined her in mid-September at her home and the Mother stated to the doctor on that occasion that she had been repeatedly physically abused by the Father and was frightened.
In response to the detailed allegations set out above, the Father has filed an affidavit, sworn on 23 May 2008. He responds to the allegations in one paragraph stating:
“[Y]ou are being informed that I have never exerted any kind of violence on my wife, either my son [S], and that the asserted in the as above documents are completely untrue and groundless, as well as that all my legal rights are reserved to this aim.”
The evidence was not tested by cross examination. Whereas there was oral evidence in relation to the Mother’s medical condition, there was no application for cross examination of the Mother and the requesting parent or any of the Mother’s other witnesses. As with many wrongful removal or retention cases under the Regulations, these proceedings were commenced on the basis that they would be determined on the papers. Mr SP’s oral evidence was, it appears to me, an afterthought on the part of the Mother’s practitioners. As I mentioned at the outset, one of the underlying assumptions of the 1980 Convention is that, generally, factual disputes are best determined in the country from which the child has been removed or retained where there is ready access to relevant witnesses and the evidence of the witnesses can be tested. The Mother’s allegations of domestic violence and the impact of it on her and the children would, it is probably safe to say, be significant in parenting proceedings in Greece where, if the Mother returned, the evidence of each parent and their relevant witnesses could be scrutinised and tested. However, in the context of this proceeding, I have to assess the allegations and make a prediction on the facts without an ability to see the evidence tested.
On one hand I have the detailed evidence of the Mother, the maternal grandmother and a maternal aunt and on the other hand I have the direct, but brief, denial by the requesting parent. Treatment of conflicting evidence in the absence of cross examination was commented upon by Butler Sloss LJ (with whom the other members of the Court of Appeal agreed) in Re F[11], at page 553 in the following terms:-
“If a judge is faced with irreconcilable affidavit evidence and no oral evidence is available or, as in this case, there was no application to call it, how does the judge resolve the disputed evidence? It may turn out not to be crucial to the decision, thus not requiring a determination. If the issue has to be faced on disputed non-oral evidence, the judge has to look to see if there is independent extraneous evidence in support of one side. That evidence has, in my judgment, to be compelling before the judge is entitled to reject the sworn testimony of a deponent. Alternatively, the evidence contained within the affidavit may in itself be inherently improbable and therefore so unreliable that the judge is entitled to reject it. If, however, there are no grounds for rejecting the written evidence on either side, the applicant will have failed to establish his case.”
[11] Re F (A Minor) (Child Abduction) [1992] 1 FLR
There has been much argument before me as to the sufficiency of the Father’s denial. Counsel on behalf of the Central Authority has stated that a denial is simply that, and one can ask for no more. Counsel for the Mother has stated that it is an insufficient response which in itself lends credence to the Mother’s case. If all of the conflicting evidence emanated from common law jurisdictions where evidence is customarily adduced by affidavit subject to being tested in cross examination, I would regard the respondent’s submission about the Father’s bald denial with more merit than I can, or think that I should, in the present case. As it is, I reject the Mother’s submission in relation to the inadequacy of the Father’s denial. In the context of implementing an international treaty between contracting states with differing legal systems, I am unable to infer anything into the Father’s statement over and above that he denies all of the allegations against him which pertain to violence against the Mother or the son, S.
There was an evidentiary point raised by the Mother’s representatives about the failure of the applicant State Central Authority to call any evidence from a cousin of the requesting parent. It is the Mother’s evidence that after an incident in early February 2007 when the Father assaulted her in the presence of E, that she (the Mother) and the Father’s cousin, approached the Father later that day. The Mother deposes that the Father threatened
“this time around I did nothing compared to what I will do to her next time. I will make sure she is black and blue and send her to hospital.”
She submits that in response to her threat to call the police, the Father said
“I am not stupid. I know what I am doing when I hit and how I hit you so there is no evidence of bruising, that’s why I punched you behind the head”.
It was contended on behalf of the Mother that, as no evidence was adduced from the Father’s cousin to rebut the Mother’s evidence of those events, an inference should be drawn that, had the cousin been called, his evidence would not have assisted the applicant’s case. It was submitted that was consistent with Jones v Dunkel (1959) 101 CLR 298.
In response, the State Central Authority argued that there is authority for the proposition that the rule in Jones v Dunkel does not apply to witnesses who are overseas. Ultimately, however, either no relevant case was identified or I did not make a note of it. It might have been that I was distracted by my discussion with counsel for the State Central Authority about how differently the amenity of air travel in and out of Australia would have been regarded in the late 1950’s and the relevantly recent advent of evidence being adduced by electronic means. In any event, a review of some law on the application of the rule on Jones v Dunkel indicate that at least nowadays it does apply to the failure to explain the absence of evidence being called from a relevant overseas witness. The Honourable Justice Crennan (then of the Federal Court of Australia) considered the question of the failure of a party to call an overseas witness in the matter of JMVB Enterprises PTY LTD v Camoflag Pty Ltd [2005] FCA 1474. In that case, Her Honour was required to be satisfied as to who had invented a patent and her Honour held (at para 144) that:
“…It is a common occurrence in the Federal Court for a relevant witness in a case to give evidence by video link from the USA and also routine for the convenience of anoverseas witness to be taken into account when arrangements are made for such evidence to be given. The Court is entitled to assume that Mr Tait’s evidence would not have assisted the applicant: Jones v Dunkel (1959) 101 CLR 298.
Similarly, Johnson J. considered the failure of the Commonwealth of Australia to call a witness in the matter of Shayan Badraie by his tutor Mohammad Saeed Badraie v Commonwealth of Australia and Ors [2005] NSWSC 1195 (22 November 2005). In that case, the Commonwealth failed to make any mention in earlier proceedings of the possibility of overseas witnesses from Iran. The (overseas) witness was known to the Commonwealth and they had had prior dealings with her. No indication was given that the possibility of evidence by audio-visual link might arise. His Honour said:
114 What do the dictates of justice require in the circumstances of this case? I have regard to all of the matters raised on behalf of the Plaintiff and the Commonwealth. I have concluded that officers of DIMIA failed to exercise reasonable diligence with respect to contacting Ms Jaleeli in the manner advised by Counsel for the Commonwealth. This failure has had a significant impact upon this litigation. I have had regard to the obligations of the Commonwealth as a litigant before this Court, under its own model litigant code and, since 15 August 2005, under the provisions of the Civil Procedure Act 2005, some of these obligations having a direct bearing on the present application. There have been failures to comply on the part of the Commonwealth with respect to a number of orders. The manner in which my orders of 13 October 2005 were approached and the way in which the privilege claim unfolded on 7 November 2005 with the disorderly presentation of documents by the Commonwealth did not assist the Court. However, I do not consider that these matters bear significantly on the present question.
It follows that I do not accept the submission of counsel for the applicant State Central Authority that the rule in Jones and Dunkel has no application merely because the witness in respect of whose absence there is no explanation is provided is an overseas witness. However, inferences are permissible only where circumstances warrant and it is another matter whether I proceed to apply the principle in Jones and Dunkel or the otherwise infer that the evidence of the Father’s cousin would not have assisted the case of the State Central Authority.
Proceedings under the abduction provisions of the Regulations involve the State Central Authority receiving evidence from the requesting parent via at least one governmental agency or central authority in the requesting state. In that context, the role of the State Central Authority and the Australian Central Authority can be distinguished from that of other model litigants, as they are limited in their capacity to prepare their case by the resources of the Greek Authorities upon which they rely. The applicant State Central Authority, of necessity, relies upon another party to collect the evidence and assist the Australian Central Authority in preparing it in a form suitable for these proceedings. Furthermore, there was no evidence or material tendered which satisfies me that the relevant authorities in Greece would be or were familiar with evidence being adduced by affidavit and responded to in like manner. In this context, I cannot justify drawing any inference about the failure of the applicant to adduce a statement or evidence from the cousin of the Father. I may very well draw the inference for which the applicant contends if the requesting state was a common law country with rules of practice and procedure similar to our own and the circumstances of the case and common sense supported that course[12] but I will not do so in the present proceeding.
[12] State Central Authority and M [2003] FamCA 1128 is such a case
In assessing the all of the evidence in this case, I apply the balance of probabilities as the standard of proof. In the decision of Carmody J in D & D [2005] FamCA 356 , his Honour analysed comprehensively the ‘standard of proof’ applicable in family law proceedings and made the following observations, with which I agree:-
[140] The relevant test is found in s 140 of the Evidence Act, 1995 (Cth). Sub-section (1) requires the facts in issue to be proved by the party with the persuasive onus on the balance of probabilities. Sub-section (2) introduces notions of weight and variability into the forensic process.
…
[145] Lord Nicholls discussed the relevant standard of proof to be applied in non-criminal proceedings in his judgment in Re: H & Ors[13] in the context of a wardship application. His Lordship relevantly stated:
"Despite their special features, family proceedings remain essentially a form of civil proceedings. Family proceedings often raise various serious issues, but so do other forms of civil proceedings.
The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event is more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury … Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established".
[146] What this means in a practical sense is the more serious the allegation, the more cogent the evidence required to overcome the unlikelihood of what is alleged and thus to prove it. [14]
[147] Thus, civil proof is not a simple matter of belief and persuasion but of "reasonable satisfaction" following a real search for the truth and evaluating the evidence adduced with regard to the matters mentioned in s 140(2) and other relevant variable factors, including those referred to by Dixon J in Briginshaw[15] and in the light of the parties' respective power or capacity to produce or contradict it. [16]
[148] The balance of probability standard takes account of the instinctive judicial feeling that even in civil proceedings a court should be surer before finding serious allegations proved than when deciding less serious or trivial matters. However, the law looks for probability not certainty. There are degrees of probability but, when the law talks about "the balance of probabilities", it envisages a degree of probability to the point that a court can be satisfied that the alleged fact in issue is more likely than not.
[149] Where, as here, proof of a fact in issue hinges on rational inferences based on circumstantial, as distinct from, direct evidence, the conclusion contended for must be rational and reasonably open. There has to be something more than mere conjecture or suspicion. A proposition is proved on the balance of probabilities in a circumstantial case when the combined weight or preponderance of the totality of the available evidence favours it as the most likely explanation. The more information consistent with one of a number of competing hypotheses, the more probable that explanation becomes.”
[13] (1996) 1 All ER 1, 16.
[14] Re Dellow's Will Trusts, Lloyd's Bank Ltd v Institute of Cancer Research (1964) 1 All ER 771 at 773 per Ungoed-Thomas J.
[15] See generally, A Ligertwood, Australian Evidence (2004, 4th ed) 82-83.
[16] Blatch v Archer (1774) 1 Cawp 63, 65; 98 ER 969, 970. See also Vetter v Lake Macquarie City Council (2001-2002) CLR 439, 454[36]; Burke v LFOT Pty Ltd (2002) 187 ALR 612, 647[134].
I have taken into account the submissions of the applicant State Central Authority that, if the Mother had been assaulted as she alleges, one could expect her to have made complaints about domestic violence to state or other authorities earlier than she did. However, I cannot accept that submission. There are many reasons why a person in a domestically violent relationship may chose not to make a report. These include pressure from a dominant spouse or related persons, a perception of no alternative means of support, a desire not to disrupt care arrangements for the children, illness, fear and even shame and embarrassment.
Having read the evidence I find the accounts given by the Mother and her witnesses, being her Mother, the maternal grandmother, and her sister, the maternal aunt, to be detailed, coherent and internally consistent and that includes photographs of alleged bruising. There is also the evidence of Mr SP to the effect that the medical condition which the Mother suffers, BPV, is consistent with her having suffered blows to the head of the type she complains having received from the requesting parent. No alternative explanation for the source of the blow was apparent from the evidence. I assess the body of evidence adduced by the respondent Mother as a whole against the evidenced adduced by the applicant State Central Authority. I take into account that the applicant’s task is trying to prove a negative proposition, which is an illogical exercise. I recognise that, if the Mother does not adduce evidence from unrelated third persons because she says she elected to remain silent at the time, it is well nigh impossible for the Father to prove that the incidents of which the Mother now complains did not occur.
On assessing the evidence as a whole, I am satisfied that it is more likely than not that the Mother and S have suffered from domestic violence at the hands of the Father and in the manner and circumstances alleged by the Mother. It is not a matter of the Mother having more witnesses to corroborate her story than the Father. I have reached that conclusion looking at the totality of the evidence which involves having regard to the quality and not merely the quantity of the various accounts.
The Mother’s medical condition
The Mother has adduced evidence from two medical practitioners in this case; her general practitioner in Greece, Dr MK, and an ear, nose, head and neck specialist, Mr SP in Melbourne.
“The Mother’s case is that she is suffering from the condition, positional vertigo, caused by the Father’s physical abuse and specifically blows to her head. She states that because of this condition, if she is exposed to even one more blow, this could result in death. It was submitted on behalf of the Mother that “[i]n relation to the grave risk that the return of the children to Greece would otherwise place them in an intolerable situation, reliance is placed upon […] the possibility that the mother may be further assaulted by the father, with the possibility (in the circumstances) of resultant serious disability or even death.”[17]
[17] Outline submissions on behalf of the Mother, Exhibit M2, paragraph 9.
It was submitted that the Mother relied upon the evidence of Mr SP to establish this proposition.
Mr SP prepared two reports, the last one of which, dated 2 May 2008, was more detailed than the first and designed to respond to questions posed by the Mother’s lawyers. In the second report Mr SP provides the following opinions (he summarises the questions in italics):-
“With regard to your specific questions, I refer to your third point querying “the likely cause of [the mother’]s condition”.
Benign positional vertigo occurring in younger people is commonly associated with significant head trauma, resulting in rapid impact, acceleration and deceleration of the head. It is believed that the otoconial fragments which consist of calcium carbonate and are heavier than the surrounding fluids then get disrupted from their support and become fragmentary sediment within the middle ear fluids. Even normal head movements thereafter can result in the fragments moving around within the inner ear and eventually finding their way into the semi circular canals, resulting in the vertigo described above.
With regard to your query of “your opinion in relation to the prognosis”.
No known therapy is able to restore the otoconial fragments back to their position on the balance organ, the utricle. Epley’s canalolith repositioning manoeuvre is usually effective however in disimpacting the otoconail fragments from the rotation sensor within the semi circular canals with subsequent relief of symptoms. In selected refractory cases, it is possible to obliterate the offending semi circular canal or divide the nerve supplying it. This is a procedure which has complications associated with it, including persistent vertigo and deafness and is only uncommonly performed.
With regard to your query of “the likely cause of [the mother’s] condition and that if a similar causal event took place, what would be the potential outcome to [the mother] and her health”.
I conclude that [the mother’s] condition is probably caused by an impact to her head as a result of an alleged assault from her husband. Further impact of this nature may be sufficient to cause skull fracture, intracranial bleeding or cervical spine dislocation or fracture, with subsequent spinal cord injury, brain damage and possibly death. In the case of the rupture of the middle meningeal artery resulting in extradural haemorrhage and spinal cord damage due to upper cervical spine dislocation or fracture, such an injury is likely to cause death prior to either medical or surgical intervention being possible. Impact of similar force to other parts of the body such as the larynx or carotoid artery could equally result in rapid death. Impact of equivalent force to the chest or abdomen could be associated with internal organ rupture or bleeding and also result in death within minutes or hours.
I conclude the further impact of an equivalent force which has resulted in her presenting condition could quite possibly result in significant long-term disability or death.”
The following oral submissions by senior counsel for the Mother were flamboyant when compared to the evidence that had actually been adduced from Mr SP:-
“It’s also put to you, your Honour, that what she is suffering from is particularly dangerous and significant. The evidence is that one more blow could result in incapacitation or death – significant long term disability is the word that’s used there, or death. I’ve said incapacitation but very similar principles, but significant long-terms disability will do, and death. It’s very hard to think, your Honour, of anything that’s at the higher end of the scale of injury other than, perhaps, quadriplegia and then death. She is, in my respectful submission, at the higher end, not the lower end, of consequences of domestic violence.”
and
“The very significant point in my submission, your Honour, is that there is no margin for error, given her medical presentation. One more blow and she could die – that’s the medical evidence that you have to deal with, with respect.
The State Central Authority’s position, made clear by counsel in submissions, seemed to me to rest on two propositions. The first was that the medical evidence was in itself inconsistent due to fundamental differences in opinion between Dr MK and Mr SP. The second was that, in any event, if one accepted the Mother as suffering from the condition of positional vertigo, the evidence of Mr SP in his sworn affidavit, read carefully, did not say that she was any more likely than the ‘average’ individual to die from a blow to the head.
In my view the second proposition put by Mr Sweeney was more persuasive than the first. Whilst it could be said that there are some differences between the evidence of Dr MK and Mr SP as to the condition the Mother is suffering from, Dr MK is not a specialist in this area of medicine and never held himself out as so. He is a general practitioner. Moreover, in the event, whilst there may be different routes adopted to get to a diagnosis, both doctors do in fact diagnose the Mother with ‘positional vertigo’. The second proposition advanced by counsel for the Central Authority seemed to me to have some merit. I found Mr SP’s report upon a re-reading, to be cautious. Counsel for the Mother contended that the Mother’s condition of BPV resulted in her being more vulnerable than other people to a blow to the head. It was “that one further blow could kill her”. Senior counsel persisted with the submission that that inference was available from Mr SP’s second report. I could not agree. Mr SP’s reference to death is descriptive of the force of a blow to the head which is sufficient to cause BVP. It did not, as senior counsel for the Mother contended, refer to an inevitable or even likely consequence of the Mother suffering another such incident. However, as indicated, I permitted the Mother to call Mr SP to enable him to clarify his report in this respect.
Mr SP gave further oral evidence and was cross examined on 16 October 2007. It was his evidence that the Mother suffered from benign positional vertigo (BPV). Mr SP described seeing the Mother with her twin sister who had asked whether these injuries could have been caused by a blow to the back of the head. When he confirmed that head injury was one of the possible causes, he described both the Mother and her sister ‘bursting into tears’.
Mr SP could not be definite about the length of time between the Mother suffering a blow to the head and the emergence of her symptoms but he could confirm that ‘an impact that is sufficient to cause BPV is sufficient to cause other injuries such as skill fracture, rupture of the middle meningeal artery, cervical spine dislocation and death”.
Mr SP confirmed in his evidence that:
“An impact that is sufficient to cause benign positional vertigo is sufficient to cause other injuries such as skull fracture, rupture of the middle meningeal artery, cervical spine dislocation, death.
By way of elaboration, Mr SP said:
“Forces differ depending on the patient. If you've got someone who's a bouncer at a nightclub, he may well be able to sustain a blow to the head which doesn't result in sufficient acceleration or deceleration to cause benign positional vertigo and, equally, they may be resistant to a skull fracture. They may be thick-skulled and heavy‑headed and have very strong neck musculature which can resist fracture or injury as a result of a blow to the head than someone who is of lighter build, particularly females or children, where they would suffer a significant injury. A good example is where if babies get shaken they can suffer just an ordinary - you know, a Father going up and shaking a baby can result in cervical spine dislocation and death in a child, where a similar force applied to an adult would not result in any injury at all.
… the injury sustained by a patient is primarily related to what they have to protect themselves, ie musculature, bulk, thickness of the skull, and related to the force of the impact that is applied to them and where it is applied.”
Mr SP confirmed that his diagnosis and suggested treatment noting that such treatment often only ameliorates the condition, but that it can recur. He agreed that a person who has been successfully treated remains at a higher risk of recurrence of BVP than a person who has not suffered BPV previously.
Mr SP agreed that the Mother’s condition could also have been suffering from iron deficiency as part of her complaint of BPV and that the two conditions could exist simultaneously. By way of explanation he described ‘dizziness’ as capable of being divided into two categories:
“Broadly speaking we try and divide dizziness up into two categories, one being a sensation of light-headedness, and the other being a hallucination of movement where the patients feel that either they or their surroundings are moving. The conditions that cause each of those two subcategories of dizziness as we define them are very different. It allows us to further define the causes of the patient's symptom of dizziness.
…. patients who have low blood pressure or iron deficiency anaemia and feel faint can lose balance as well but they generally will not have an hallucination of movement. They will feel like they're going to fall or feel faint but they won't actually have the hallucination of movement which we call, in medical terms, vertigo.”
It was Mr SP’s expert opinion that not only did the Mother suffer from the condition called BPV but that the condition would render her more likely to sustain consequential injury if subjected to domestic violence. Mr Sp’s oral evidence included the following discussion:-
MR [SP]. Well, the injury sustained by a patient is primarily related to what they have to protect themselves, ie musculature, bulk, thickness of the skull, and related to the force of the impact that is applied to them and where it is applied […] It takes more force to accelerate or decelerate a head that is larger, that is heavier. So a thick-set person with a heavy head, heavy skull, will be more resistant to a blow of X force than someone who is of lighter build with a thinner skull and a lighter head and weaker musculature.
[…] HER HONOUR. When you wrote the sentence, "Further impact of this nature may be sufficient to cause skull fracture, intracranial bleeding or cervical spine dislocation or fracture," with the other consequences, were you referring just to [the mother], your patient, or the application of force to the head in general?---You're asking me if someone of equivalent build, such as [the mother’s] identical twin sister, if she was to receive an equivalent blow would she be likely to suffer an equivalent injury?
Mm?---From the primary blow, yes. The answer to that question is yes, although someone who already has vertigo may have difficulty if they're knocked off balance from regaining their balance and may subsequently fall and suffer a secondary injury as a result of falling to the ground, being unable to protect themselves from falling to the ground […]---So there's the primary injury which would be equivalent in anyone of the similar build, and a secondary injury from impact with the ground if they were to fall, which someone with vertigo would have more difficulty in resisting.
I am unable to predict the outcome of proceedings in either jurisdiction. For the purpose of this exercise, it is likely that the outcome of the proceedings, wherever they are conducted, will be a determination arrived at with the children’s interests being a relevant, if not paramount, consideration.
Consequences of acquiescence. I am not satisfied that there has been any acquiescence on the part of the requesting parent.
The situation awaiting the respondent Mother and children if they return. I have dealt above with the possible incarceration of the Mother. This is a very serious aspect and real problem of the case. I have not received any evidence which leads me to conclude that the Mother is not at serious risk of being gaoled if she is found guilty of criminal charges.
The anticipated emotional effect upon the children of an immediate return
.
I accept that the children will suffer emotionally by reason of being separated from the family with whom they are very entrenched in Melbourne. However, that will abate. I am more concerned about the inability of the mother to shield the children, aged 10 and nearly 6 years, from the harmful effects re-introduction into an environment which they would remember as being physically abusive of the Mother and of S.
I am satisfied that it would be harmful in the extreme to the immediate, medium and long term emotional wellbeing of the children to be returned to Greece under the conditions which present themselves from the evidence in this case.
The extent to which the purpose and underlying philosophy of the Hague Convention would be frustrated if a return order were refused. The philosophy of the 1980 Convention includes the protection of children from the harmful effects of international child abduction and to ensure their prompt return to their home state. However, the Convention always envisaged exceptions to mandatory return and the exceptions are as much a part of the philosophy of the 1980 Convention as prompt return and respect for rights of custody and access between contracting states. Having regard to the evidence with which I have been presented, I do not regard the philosophy of the Convention as being frustrated by my refusal to return the children to Greece in this case
Whilst I am satisfied that the more appropriate forum, vis a vis the availability of witnesses and testing of evidence, is Greece, my concerns for the wellbeing of the children if they return to Greece outweighs the practical advantages of being able to conduct litigation and resolve arrangements for their care in their home country.
For the reasons which I have expressed above, I find on the evidence before me that this case fits within the exception to mandatory return as provided in r 16(3)(b) of the Regulations. It is not a finding which I make lightly and, having made it, the matters on which I was addressed in relation to the exercise of my discretion do not lead me to conclude that it would be appropriate or proper or in the best interests of the children to be returned to Greece notwithstanding the grave risks which I am satisfied a return would entail.
I will dismiss the application of the State Central Authority.
I certify that the preceding one hundred and fifty (150) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett
Associate:
Date: 22 December 2008
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