T and R
[2007] FMCAfam 867
•23 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| T & R | [2007] FMCAfam 867 |
| FAMILY LAW – Parenting orders – best interests of the child – consideration of factors – drug testing – changeover. |
| Family Law Act 1975 (Cth) ss.4(1) (1AB) & (1AC), 60CC(2)(a) & (b), (3)(a)-(k) and (l), (4)& (4A), 60CD(1) & (2), 61DA, 65DAA(1)(a) & (b), and 69ZT(1) & (2) |
| B & B [2007] FMCAfam 82 L & T (1999) FLC 92-875 at 86, 392; [1999] FamCA 1699 T & N (2003) FLC 93-172 |
| Applicant: | M D T |
| Respondent: | K P R |
| File Number: | NCM 2630 of 2006 |
| Judgment of: | Lucev FM |
| Hearing date: | 20 September 2007 |
| Date of Last Submission: | 20 September 2007 |
| Delivered at: | Melbourne (by telephone) |
| Delivered on: | 23 October 2007 |
REPRESENTATION
| Applicant: | Mr T in person |
| Respondent: | No appearance |
ORDERS
The Mother, K P R, and the Father, M D T, have equal shared parental responsibility for the Child J E D T, born 1996.
The Child to live with the Mother and spend time with the Father as follows:
(a)every second weekend from 6.00 pm Friday to 5.00 pm Sunday (or 5.00pm on Monday if Monday is a pupil free day) with effect from 2 November 2007;
(b)from 6.00 pm Friday in the first week to 5.00 pm Saturday in the last week of the April and October New South Wales gazetted school holidays in odd numbered years;
(c)from 6.00 pm Friday in the first week to 5.00 pm Friday in the last week of the July New South Wales gazetted school holidays in even numbered years;
(d)from 6.00 pm on the first Friday (and if school breaks up on a Friday that being the first Friday) until 6.00 pm on 31 December of the 2007 Christmas New South Wales gazetted school holidays and each alternate year thereafter;
(e)from 6.00 pm on 31 December 2008 to 6.00 pm on 28 January 2009 of the Christmas New South Wales gazetted school holidays and for the same time and dates each alternate year thereafter;
(f)by communication with the Child for at least 10 minutes between 7.00 pm and 7.30 pm each Monday, Wednesday and Friday via either a landline telephone or mobile telephone nominated by the Mother (nominated telephone), the Mother to:
(i)ensure that the nominated telephone is free to be called; and
(ii)the Child is available to take the Father’s call; and
(iii)not listen in on the Father’s call to the Child,
provided that if the Father’s Birthday falls on a day on which the Child is not spending time with the Father then the Father may communicate via the nominated telephone with the Child for at least 10 minutes between 7.00 pm and 7.30 pm that day;
(g)on Father’s Day weekend as if it were a weekend referred to in paragraph (a) of this order;
(h)not on Mother’s Day weekend;
(i)on the weekend closest to the Child’s even aged birthday; and
(j)not on the weekend closest to the Child’s odd aged birthday.
To facilitate changeover:
(a)the Mother or her nominee and the Father or his nominee are to be at the Caltex Service Station (“Service Station”) at G Road, G, New South Wales, not less than 30 minutes prior to the times referred in Order 2;
(b)neither party nor their nominees is to leave the Service Station until the time referred to in Order 2, unless changeover has been effected; and
(c)changeover is to be effected as soon as possible after both parties arrive at the Service Station.
When the Child is spending time with the Father on school holidays the Mother may communicate with the Child as follows:
(a)by communication with the Child for at least 10 minutes between 7.00 pm and 7.30 pm each Monday, Wednesday and Friday via either a landline telephone or mobile telephone nominated by the Father (nominated telephone), the Father to:
(i)ensure that the nominated telephone is free to be called; and
(ii)the Child is available to take the Mother’s call; and
(iii)not listen in on the Mother’s call to the Child,
provided that if the Mother’s Birthday falls on a day on which the Child is not with the Mother then the Mother may communicate via the nominated telephone with the Child for at least 10 minutes between 7.00 pm and 7.30 pm that day.
The Mother and Father are to provide each other with their landline and mobile telephone numbers within seven (7) days of these orders, and to nominate one of those phone numbers as the nominated telephone for the purposes of Orders 2(f) and 4(a) respectively.
That each parent is authorised by these orders to communicate directly with the child’s school, medical and other health practitioners on any matters concerning the Child, and those persons are authorised by these orders to release the original or a copy of any reports, documents or other materials concerning the Child to each parent.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
NCM 2630 of 2006
| M D T |
Applicant
And
| K P R |
Respondent
REASONS FOR JUDGMENT
Introduction
M D T[1] and K P R[2] had a relationship, and then commenced cohabitation in September 1996.
[1] “Father”.
[2] “Mother”.
J E D T[3] was born in 1996.
[3] “Child”.
Father and Mother separated in August 1998.
Sometime in 2001 in the Local Court at C, an Order was made in the following terms:
1.The child J E D T born 1996 reside with the Mother.
2. The father have contact with the child as follows:
a) from 5.30pm 23 May 2001 until 6pm 27 May 2001;
b) from 9am Saturday until 6pm Sunday each period of 30 June – 8 July 2001; 17-25 August 2001; 29 September – 7 October 2001; 17-25 November 2001;
c) from 10am 25 November 2001 until 6pm 15 January 2002;
AND from when the child commences school in 2002;
d) half of each NSW gazetted school holidays being the first half in odd numbered years and the second half in even numbered years;
e) for 3 weekends each school terms from 4pm Friday until 5pm Sunday upon the father giving the mother one week’s written notice;
f) telephone contact three times per week, the father to ring the child between 7pm & 7.30pm and at other suitable times.
3. For the purposes of contact a)-e) above, the father to collect the child form the mother’s residence and return him to the mother’s residence.
4.That the mother will give the father her current telephone number and will provide the father with a new address within 7 days of moving.
5.That the mother will authorise that child’s school to provide the father with the child’s school report and any information he seeks in relation to the child.[4]
[4] “Local Court Orders”.
The Father now seeks to vary the Local Court Orders. Essentially, the Father seeks to vary by:
a)imposing a requirement for the Mother to undergo a drug test;
b)if the drug test is negative the child to continue to live with the Mother, but if the results are positive the Child to live with the Father;
c)dependent on which parent the Child lives with, the Child to spend substantial and significant time with the parent with whom the Child is not living;
d)by varying the time spent with the non lived with parent (presently the Father) from 3 weeks per school term upon the giving of one week’s written notice, to every second weekend; and
e)other changes are sought for special days such as birthdays and Mother’s Day and Father’s Day, for which there are presently no orders.
Hearing
The solicitor for the Mother sought leave to withdraw at the outset of the hearing. The solicitor advised the Court that no instructions had been received by the Mother, who had been advised of the hearing date by the solicitor. Leave to withdraw was granted.
The Father represented himself at hearing.
The Law
Principles to be applied and procedure to be followed
The judgment of the Full Court of the Family Court of Australia in Goode & Goode[5] concerned interim parenting orders. The Full Court of the Family Court of Australia in Hungerford & Tank,[6] a case concerning final orders, said that the failure to follow the steps laid out in Goode was an error of law. The steps identified in Goode (albeit in an interim application) are as follows:
[5] (2006) 206 FLR 212; [2006] FamCA 1346 (“Goode”).
[6] [2007] FamCA 637 at para. 62 per Warnick, May and Boland JJ.
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.[7]
[7] Goode, FLR at 235-236 per Bryant CJ, Finn and Boland JJ; FamCA at para 82 per Bryant CJ, Finn and Boland JJ. See also B & B [2007] FMCAfam 82 at paras. 2-5 per Wilson FM (“B & B”).
Evidence
The evidence is limited. In relation to the parenting orders there is but one affidavit for the Father, that being his affidavit sworn 15 November 2006 in support of the parenting orders application.[8]
[8] There are two other affidavits, one sworn on 18 December 2006 and an amended affidavit sworn 28 February 2007, but these deal with an application for contravention orders which was dismissed by this Court on 7 May 2007.
The gist of the evidence is as follows:
a)during the “dysfunctional” relationship that the parents had, drugs played a large part;[9]
[9] Father’s Affidavit, para. 5.
b)the Father has attended at the Mother’s residence “on numerous occasions” and “smelt marijuana”;[10]
[10] Father’s Affidavit, para. 6.
c)the child has volunteered to the Father that he has seen the Mother “smoke out of a bottle”;[11]
[11] Father’s Affidavit, para. 7.
d)that the Father contacted the Department of Community Services with concern about the Mother’s alleged drug taking, but after a visit to the Mother, the Department advised the Father that the Mother “would no longer smoke illegal substances”;[12]
[12] Father’s Affidavit, para. 8.
e)that the Child tells the father that he has not seen the Mother smoking out of a bottle again, but says “I smell it all the time”;[13]
[13] Father’s Affidavit, para. 9.
f)that as a consequence of a dispute about a haircut for the Child, the Mother has threatened the Father’s partner, who was “heavily pregnant” at the time to have a fight, and has thrown an unspecified object a the Father, which struck him on the back of the head when he was collecting the Child from the Mother;[14]
[14] Father’s Affidavit, paras. 11-13.
g)the Father believes that changeover at a public place will discourage the Mother from behaving violently;[15]
[15] Father’s Affidavit, para 14.
h)since the Local Court Orders were made the Father’s circumstances have changed dramatically, including:
i)a three year relationship with his current partner who has two sons to a previous relationship;
ii)the birth of twins, seemingly some time in the later half of 2006; and
iii)an increased financial burden;[16]
i)that the Father has minimal income, and the Mother threatens not to let him see the Child until she is payed more money by the Father;[17]
j)there have been long periods when the Mother has refused to allow the Father to see the Child, often extending to periods of several weeks;[18]
k)there have been occasions when the Mother has left the Child with the Father for lengthy periods of time;[19]
l)at least on one occasion the Mother has not delivered the Child on time for changeover;[20]
m)the Father says that the Child “has always and continually asks my family if he can come and live with me”;[21] and
n)the Child has told the Father that the Child has had a number of days off school for no apparent reason and the Father considers the Child’s attitude towards school to be poor.[22]
[16] Father’s Affidavit, paras. 15-16 and 27-28.
[17] Father’s Affidavit, paras. 18-20.
[18] Father’s Affidavit, paras. 20-30.
[19] Father’s Affidavit, paras. 27-29.
[20] Father’s Affidavit, para. 31.
[21] Father’s Affidavit, para. 25,
[22] Father’s Affidavit, para. 24.
Whilst the Father’s application for contravention orders have been dismissed, the Father seeks to rely on the affidavits filed in relation to the contravention orders as evidence in this case. Whilst the Court has dismissed the applications concerning the contravention orders, the Court has had regard to the material contained in the relevant affidavits, but only as a general indicator that there are difficulties in the existing arrangement for time spent, both in person and on the telephone, for the Father spending time with the Child.[23]
[23]Father’s Affidavits of 21 December 2006 and 6 March 2007 (“Fathers Contravention Affidavits”).
The Father lives at D. The Father told the Court at the hearing, and the Court can take judicial notice of the fact, that D is about a five hour drive from C.
Equal Shared Parental Responsibility
The FL Act presumes that there will be equal shared parental responsibility.[24] There is nothing in the evidence to indicate that equal shared parental responsibility is not in the best interests of the Child.
[24] FL Act, s.61DA.
The Court will order equal shared parental responsibility in this case.
Time Spent
Where a parenting order provides for equal shared parental responsibility the Court must consider whether the Child spends equal time with each parent, that being presumed to be in the best interests of the Child.[25] Equal time with each parent is qualified by a requirement that it be reasonably practical.[26] In this case it is not reasonably practicable for the Child to spend equal time with each parent by reason of the distance which the parents live apart.
Primary Considerations – section 60CC(2)
[25] FL Act, s.65DAA(1)(a).
[26] FL Act, s.65DAA(1)(b).
Benefit to the Child of having a meaningful relationship with both parents – section 60CC(2)(a)
There is no dispute that the Child should have a meaningful relationship with both parents. Presently the Child’s ability to have a meaningful relationship with the Father is impaired by a lack of time spent with the Father, and the difficulties associated with spending time with the Father. Part of the difficulty with the Child spending time with the Father are the difficulties arising from the requirement to give notice and specify a time at which the Father will see the Child on the three weekends per school term provided for by the Local Court Orders.[27]
[27] See generally the Father’s Contravention Affidavits.
The Court considers it might be possible to deal with this issue by an adjustment of the orders for time spent to provide for a simpler regime with respect to the Child spending time with the Father.
Risk of Harm to the Child – section 60CC(2)(b)
There is no overt evidence of harm to the Child, nor of abuse. There is perhaps some suggestion that the Child is neglected because of the Mother’s alleged drug use, but again there is no specific evidence of that, other than a suggestion that the Child has been having a number of days off school. When, and how long, and what if any effect, those suggested absences might have had is matter about which there is no evidence.
Two incidents give rise to the possibility that the Child has been exposed (but not subject to) family violence.[28]
[28] FL Act, s.4(1).
The first is the abuse of the Father’s current partner, and the Mother’s threat to fight her over a hair cut given to the Child. The second is when an object was thrown at and his the Father’s head.[29]
[29] FL Act, s.4(1), (1AB) and (1AC).
On the available evidence neither seems particularly serious in context or content. There is no suggestion that the conduct is part of a pattern, and no dates or times are given in relation to the two incidents, although the threat to the Father’s current partner is most likely to have occurred some time in the second half of 2006.[30] It is not possible to put a date on the other incident involving the Father. The incidents appear to be isolated and minor. Further the incident involving the Father’s current partner may not be family violence as it does not appear to apply to a person within the definition of “relative”.[31]
[30] It is at this time that she would have been “heavily pregnant”; see Father’s Affidavit, at para. 12.
[31] FL Act, s.4(1AC).
Any difficulties that arise in relation to the possibility of family violence might be assisted by variation of the changeover requirements, especially as to where changeover is to take place. There may be some merit in the Father’s suggestion that there be a public place changeover to assist in preventing possible future exposure of the Child to family violence.
Other considerations – section 60CC(3)
Views expressed by the Child – section 60CC(3)(a)
The Father has expressed in his affidavit a wish that someone speak to the Child “so that his wishes are taken into account”.[32] Nothing was apparently done concerning that request prior to hearing, and at hearing the Court indicated to the Father that the matter would be heard on the available admissible evidence.
[32] Father’s Affidavit, para 25.
There is no independent report of the Child’s wishes. As such there is no evidence of the Child’s wishes before the Court.[33]
[33] FL Act, s.60CD (1) and (2).
Relationship of the Child to parents and other significant persons – section 60CC(3)(b)
There is no evidence that the Child has anything other than a normal relationship with the Mother, and with the Father when the Child spends time with the Father.
In terms of other significant persons, apart from reference to the fact of the Father’s current partner, there is no particular evidence of other significant persons with a relationship with the Child on the Father’s side.
There is no evidence of persons of significance to the Child on the Mother’s side.
Parental facilitation and encouragement of a close and continuing relationship between Child and other parent – section 60CC(3)(c)
Maturity, sex, lifestyle and background of Child and Parents – section 60CC(3)(g)
The foregoing two factors are considered together here as they are interwoven on the facts of this particular case.
On the evidence the Mother has not always exhibited a particular willingness to facilitate and encourage a close and continuing relationship between the Child and the Father. There are numerous instances of difficulties (albeit not found to be or amounting to contraventions) involving the Mother’s actions which have affected the Father’s time spent or communication with the Child.[34]
[34]See generally the Father’s Contravention Affidavit.
Once again, those difficulties might be overcome or lessened by a simpler time spent regime.
On one view, it seems that the Father is asserting that the Mother’s alleged use of drugs, and the impact that has on her lifestyle, has caused difficulties in the facilitation of time spent with the Child by the Father.
In particular, the Father notes the dysfunctionality of the relationship between he and the Mother several years ago, and says that this was caused by the use of drugs by both of them, before then setting out particulars of what it is he alleges about the Mother’s drug use. Those particulars are set out for the purpose of arguing that this Court ought to issue an order that the Mother undergo drug testing. The order sought provides that if the Mother returns a negative result then the Child should continue to live with her. If, however, the Mother returns a positive result then the Child would live with the Father. Much may therefore turn on whether drug testing is ordered.
As indicated at the outset the evidence in this case is limited. It is fair to say that the evidence both generally and in relation to this issue, is very general and not specific as to dates, times and places, or frequency of occurrence. The evidence amounts to this:
a)the parents had a dysfunctional relationship because of drugs;
b)the Child says to the Father that he has seen the Mother smoke from a bottle;
c)the Father contacts the Department of Community Services and expresses his concerns at the Mother’s drug taking, with the result that the Department seemingly speak to the Mother, and then tell the Father that they are satisfied that the Mother will no longer smoke illegal substances; and
d)since then the Child has not seen the Mother smoking out of a bottle, but can “smell it all the time”.[35]
[35] Father’s Affidavit, para 9.
The above entails the evidence of the Child being admissible for the purposes of making findings with respect to the Mother’s alleged drug taking.[36]
[36] FL Act, s. 69ZT(1)(2).
On the basis of the available admissible evidence it appears that the Mother uses marijuana. There is little doubt that drug use has the ability to affect the welfare of a child and parenting capacity, for if a parent who uses drugs “cannot be free and alert from substance abuse … [the parent] cannot properly care for young children who would rely upon … [the parent] to have their needs met.”[37] However, caution must be exercised. In L & T the Full Court of the Family Court said:
“It would not be, in our view, a proper exercise of the “welfare” power for a Court to place limits on a parent’s conduct unless it could be demonstrated that those limits were necessary for the welfare of the child. Even then, careful consideration would need be given to the right of the parent to conduct their life as they see fit.”[38]
[37] T & N (2003) FLC 93-172 at 78, 761 per Moore J.
[38] (1999) FLC 92-875 at 86, 392; [1999] FamCA 1699.
In this case the evidence of drug use by the Mother cannot be said to give rise to any demonstrable link between the Mother’s drug use and the welfare of the Child or the Mother’s parenting capacity. There is simply nothing on the evidence which establishes that the circumstances of the Child’s welfare or the Mother’s parenting would be any different, or sufficiently different to warrant adverse conclusions being drawn, if she did not use drugs, particularly marijuana to which this case is limited.
It is therefore not appropriate to order that the Mother undergo drug testing, or to impose any relevant conditions or restraints.
The Mother has failed to facilitate a close and continuing a relationship between the Child and Father. The Court has come to the view that a more rigidly time spent arrangement, leaving less discretion to the Mother and less room for arguments about whether “written notice” was given and whether the notice was on time is more likely to ensure the maintenance of a close and continuing relationship between the Child and Father. It will also make it easier to determine in the future if there are contraventions.
Likely effect of changes in Child’s circumstances – section 60CC(3)(d)
The most significant change proposed by the orders sought by the Father is that the Child lives with him in the event that the Mother failed a drug test. The Court has not ordered drug testing and that proposed order does not require further consideration.
Otherwise the changes in the Father’s proposed orders are relatively minor, such as:
a)providing for weekend time spent to be every fortnight, as opposed to the current three times a term on seven days written notice to the Mother;
b)time spent specifically allocated for special days; and
c)there be a nominated public place changeover.
Orders along these lines do not effect too great a change in the Child’s circumstances, and are really minor fine tuning after six years of consent orders. Indeed, in the circumstances, it is puzzling why some orders, especially those as to special days, are even opposed in the Mother’s response.
Practical difficulty and expense of Child spending time and communicating with parents – section 60CC(3)(e)
Both parents appear to have low incomes and minimal assets. Any expenses associated with the Child spending time and communicating with the parents in those circumstances ought not impose a disproportionate burden on any one party.
There is no practical difficulty (as opposed to parent imposed difficulty) apparent on the evidence with the Child actually spending time and communicating with each parent, in terms of time or the means of travel and communication. The Mother and Father live a considerable distance apart (five hours drive), but it is not the distance that the parents are geographically apart that has caused the difficulties with the Father spending time with the Child in the past.
Where there is time and expense disproportionate between the parties is in relation to the place of changeover. Presently, the Local Court Orders require the Father to pick up and return the Child to the Mother’s residence for changeover. That entails the Father having a five hour trip (10 hour return trip) on each occasion. The Father points out that this results in him incurring all the time and expense (particularly petrol), and that it may also involve accommodation expenses being incurred by him.[39]
[39] Father’s Affidavit, Annexure 1.
It is arguable that in this case some of the problems stem from changeover occurring at the Mother’s residence. It provides her with flexibility and a capacity to cause disruption, albeit minor, but nevertheless irritating, by not being home at changeover times, or not insuring that the Child is home at those times.[40]
[40] See generally the Father’s Contravention Affidavits.
An arrangement whereby changeover times are set, within a slightly flexible time band to allow for the vagaries and exigencies for travel in rural New South Wales at a public place equi-distant between the parties will in the Court’s view reduced the practical difficulty presently arising at changeover, and its consequence impact on the Father’s time spent with the Child.
Capacity to provide for the needs of the Child – section 60CC(3)(f)
As indicated above the parties seem to have low incomes and minimal assets. They have the capacity to provide for the Child within their limited means.
Aboriginal and Torres Strait Islander Child – section 60CC(3)(h)
Not relevant here.
Attitude to the Child and parental responsibilities – section 60CC(3)(i), (4) and (4A)
On the evidence it appears that the Mother has, by the difficulty she has caused with the Father spending time with the Child, and for the Father at changeover, not exhibited a proper attitude to the responsibilities of parenthood. The Mother has, as is evident from the reasons above, failed to facilitate the Father spending time and communicating with the Child.
Family Violence or Family Violence Orders involving the Child or a member of the family– section 60CC(3)(j) and (k)
There are no family violence orders applicable on the evidence on this case. The question of family violence, to the extent that it is relevant, discussed above.[41]
[41] See paras. 25-29 above.
Order less likely to lead to further proceedings – section 60CC(3)(l)
A Court considers that with greater certainty in the orders, especially with time to be spent with the Father and the time and place of changeover, there will be less likelihood of further proceedings, both in relation to parenting orders and any possible future contraventions. That of course assumes a degree of good will, cooperation and common sense by both parties. To a considerable degree the latter factor seems to be lacking in most of the parties interactions, with a consequent diminution in, if not eradication of, the former two factors.
Conclusions
There will be equal shared parental responsibility in this case.
The Child will continue to live with the Mother, and there will be no drug testing preconditions to this occurring.
The Court considers that the best interests of the Child will be served by allowing the Child to spend time with the Father:
a)at set times, including special days;
b)without the preconditions presently imposed by the Local Court Orders; and
c)the Court has fashioned time spent orders accordingly, but broadly in line with those sought by the Father.
For changeover , the Court considers that the best interests of the Child will be fostered by having changeover:
a)in a public place;
b)within a band of time which allows for any difficulties arising from the travel necessary to effect changeover; and
changeover will occur at the place nominated by the Father in his proposed orders.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: M Hewitt
Date: 23 October 2007
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