THOMAS & WATSON
[2013] FamCAFC 8
•15 February 2013
FAMILY COURT OF AUSTRALIA
| THOMAS & WATSON | [2013] FamCAFC 8 |
| FAMILY LAW – APPEAL – CHILDREN – parenting orders |
| Family Law Act 1975 (Cth) |
| APPELLANT: | Mr Thomas |
| RESPONDENT: | Ms Watson |
| INDEPENDENT CHILDREN’S LAWYER: | Simone Wunderlich |
| FILE NUMBER: | MLC | 902 | of | 2007 |
| APPEAL NUMBER: | SOA | 77 | of | 2011 |
| DATE DELIVERED: | 15 February 2013 |
PLACE DELIVERED: | Sydney |
| DATE HEARD: | 2 October 2012 |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Finn, Strickland & Ainslie-Wallace JJ |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 6 October 2011 |
| LOWER COURT MNC: | [2011] FamCA 859 |
REPRESENTATION
| FOR THE APPELLANT: | Mr Thomas in person |
| FOR THE RESPONDENT: | No appearance |
| FOR THE INDEPENDENT CHILDREN’S LAWYER: | No appearance |
Orders
The appeal be dismissed.
The application in relation to the provision of transcript filed by the appellant father on 2 November 2011 be dismissed.
There be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Thomas & Watson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 77 of 2011
File Number: MLC 902 of 2007
| Mr Thomas |
Appellant
And
| Ms Watson |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed 2 November 2011 Mr Thomas (“the father”) appeals against orders made by Dessau J on 6 October 2011 in relation to the children of his marriage to Ms Watson (“the mother”), W (born in 2000) and A (born in 2004).
Her Honour’s orders provided for the mother to have sole parental responsibility for the children, for the children to live with the mother, and for the children to spend time with the father each alternate weekend from the end of school Friday to the start of school Monday and each alternate week from the end of school Thursday to the start of school Friday. The changes brought about by these orders were to reduce by one night the time that the children spent with the father in each fortnight, and to provide the mother with sole parental responsibility.
The mother chose not to appear at the hearing of the appeal, but it is apparent that she opposes the appeal. The Independent Children’s Lawyer also advised the court that he would not be participating in the appeal.
The father appeared before us without legal representation and he made his submissions through a Mandarin interpreter.
Background
The parties were born in China. The father came to live in Australia in 1989 and married the mother in China in 1996. He returned with her to live in Australia later in that year. The parties separated in mid-2006 and an intervention order was made in August of that year which provided that the mother live in the parties’ marital home with the two children and the father live elsewhere.
The mother works as a nurse. The father does not work and he is undertaking a course of study.
In September 2007 final orders were made by consent that the children live nine nights of each fortnight with the mother and five nights with the father, and the parties have joint parental responsibility for making decisions in relation to the children.
In the hearing before Dessau J, the mother sought that the 2007 orders be discharged and that she have sole parental responsibility for the children and that they live with her. She further sought orders that the father spend time with the children from Friday after school until 6.30 pm on Sunday in one week and in the next week that the children spend time with the father from the end of school Thursday until the start of school on Friday.
The father’s response also sought that the earlier orders be set aside and that he and the mother have equal shared parental responsibility for the children and, according to the trial Judge sought that they be with him “more than fifty percent” of the time.
Her Honour ordered (relevant to this appeal):
1.That the orders of this Court made on 17 September 2007 in so far as they relate to the children [W] born … 2000 and [A] born … 2004 be discharged.
2. That the mother shall have the sole parental responsibility for the children.
3. That the children shall live with the mother.
4. That the children shall spend time and communicate with the father as follows:
(a)Each alternate weekend from the end of school Friday to the start of school Monday;
(b) Each alternate week from the end of school Thursday to the start of school Friday;
…
The father appealed orders 2, 3 and 4.
Her Honour also made orders for the children to spend time with the father for half of the school holidays, on each of their birthdays and that of the father, and on Father’s day.
Her Honour had the benefit of two reports prepared by a Family Consultant,
Mr S. An Independent Children’s Lawyer appeared for the children.
The Trial Judge’s Reasons for Judgment
Having referred to the background to the matter and the relevant provisions of the Family Law Act 1975 (Cth) (“the Act”), her Honour, in the context of s 60CC(2) of the Act, considered the benefit to the children of having a meaningful relationship with the parents. She found that while both parents said that the children needed a relationship with the other parent, each had been “guilty of conduct that diminishes what they claim, and undermines the other parent’s relationship” (at [19]). Her Honour found that the evidence clearly supported the family consultant’s conclusion that the father’s attitude to the mother was “by far the worst” (at [20]).
As to the need to protect the children from physical or psychological harm, her Honour said:
21.I am left with no doubt that both Ms [Watson] and Mr [Thomas] have exposed these children to psychological harm by exposing them to their intense parental conflict and intensely negative views of each other.
Her Honour found that the risks to the children’s emotional well-being were illustrated by how they appeared in interview with the Family Consultant and what they said to him (at [22]). She said:
28. In his report and in his evidence, the Family Report writer emphasised the adverse effects for the children’s psychological well-being and healthy emotional development, of being exposed to this conflict.
29. He described it as highly likely that [W] is “stressed and concerned about the dysfunctional parental dynamic”. He said [A] is “an insightful and intelligent child with excellent language and perceptual skills for her age.” He described her “simple but skilful portrayal” of having to fit in between her parents’ environments as a typically encountered scenario for children who find themselves caught in the midst of their parents’ argument and discord.
30. In his evidence, Mr [S] described negative feedback from one parent about [the other] as “devastating” for children. He said that if it continued, there would be unacceptable and negative repercussions on the emotional state and future development of the children. In his view, the children already need counselling to assist them.
Her Honour concluded that the father’s disrespect towards the mother, his negativity and adverse comments about the mother to the children were “significantly more profound that her negativity in return” (at [31]).
The mother alleged that the father had been violent to her and this was denied by the father. Her Honour found that the mother’s account was “more probable” and was fortified in that finding by the father’s admission in a letter written by him to the mother in 2006 of hitting her (at [32]).
Her Honour said:
33. Fortunately, for some years now the parents have had nothing to do with each other and there is no suggestion that there has been an on-going issue of physical violence…
Although there was no recent allegation by the mother that the father had been physically violent to her, save and except that she claimed that, in February 2011, the children told her that the father had threatened to kill her, her Honour found that what the father had said to the Consultant and to Dr L, a psychologist who had written the family report in 2007, was suggestive of the mother’s allegations “being true [rather] than untrue” (at [34]).
Clearly the issue of violence was one of historical context rather that an issue with which her Honour was immediately concerned.
Her Honour then turned to the additional considerations in s 60CC(3).
As to the children’s views, her Honour observed that the “only objective source of information” about their views was in the Family Report. After considering the reported comments of the children made to Mr [S], she found that their views as expressed “need to be considered against the backdrop of parental influence” (at [43]).
In considering the matters relevant to s 60CC(3)(c), the capacity of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent, her Honour found that the mother had a negative view of the father and said (at [47]):
…given his nature, his attitude towards her as a virtually “worthless” person, and his view of his own superiority over her in most regards, it must be very difficult indeed for her to have a positive view of him.
Her Honour noted that according to the Consultant, the mother’s anger towards the father had increased between the time of the two reports prepared by him.
However, her Honour said that the mother having attended a “parenting after separation” course was able to concede that she had spoken against the father to the children and told her Honour that she was now genuinely trying not to do so. Her Honour said that this and that the mother was the less negative of the parents was heartening (at [50]).
Turning to the father, her Honour said:
52. Unfortunately, there is no basis for confidence that Mr [Thomas] has the same insight or capacity for change. Although he has two healthy and overall happy children (except for the pain their parents’ conflict causes them), and in [A’s] case a quite bubbly, intelligent and outstandingly perceptive child, he spoke in the most disparaging terms about their mother.
After setting out the evidence in this regard her Honour concluded:
61. Mr [Thomas] denied conveying his negative views of Ms [Watson] to the children, even inadvertently. Given the level of his hostility to the mother, and the children’s awareness of each parent’s view of the other, it is not possible to accept that. I am not heartened by the father’s insistence to Mr [S] that no matter what the outcome of this case, he would keep the court documents so that when the children grow up he can tell them “the full story”. When Mr [S] challenged him about the appropriateness of such a course, Mr [Thomas] replied “They must know the truth”. He repeated that in evidence before me.
The parties raised a number of complaints about the other’s care of the children such as the kind and quality of the food provided by the other, that the other parent did not send the children’s clothes to the other parent and who could better assist A with her piano lessons. Her Honour was not troubled by these complaints and was satisfied that both parents could provide for the children’s day to day needs.
The father raised a particular concern that W was not performing as well as he could as school. Her Honour noted that the mother too was concerned about his school performance (at [66]). Her Honour found that the evidence did not satisfy her that one parent over the other could facilitate the children’s educational needs. She said:
66. …And, if [W] is free from the stress of the parents’ battles, he may be able to better concentrate his energy into his studies.
One particular issue raised in the proceedings before her Honour concerned W’s allergy and the father’s attitude to it. The mother alleged that the father had not properly shielded the child from the effects of the allergy.
Her Honour found that the father had not appropriately protected W (at [35]). She initially noted that the father’s evidence on this issue was “unimpressive”. She returned to the issue and observed that the child had complained to the Family Consultant that (at [67]):
I’m allergic to [certain ingredients]. Dad says there’s no such thing as allergic. You’re just itching because you haven’t had a proper bath. It makes a lumpy thing on my lip and I scratch it. Mum doesn’t cook [certain ingredients] because she knows.
Her Honour found the father’s evidence on this issue to be unsatisfactory and did not accept his explanation that his insistence that W try a dish of certain ingredients was a cultural symbol. She said that the child’s observations that his father does not believe he is allergic to be the more likely explanation for insisting that the child try these foods. She said that the father’s conduct in this regard was “unsatisfactory” (at [68]).
It is important to observe that although her Honour found that both parents have shown some limitations in their capacity to put the children’s needs ahead of their own, it seems that the issue which was of most significance in the matter was the relationship between the parents, their hostility to each other and their denigration of the other to the children.
Turning to a consideration of the effect of change on the children, her Honour accepted the Family Consultant’s view that the amount of time the children spent with the father was not as important as the damage to them from the hostility between the parties and to which they had been exposed (at [71]). However, her Honour did accept the Consultant’s evidence that the father’s time with the children should be slightly reduced. Her Honour said:
72. He explained that the children were caught between two individuals with different ideas. The parents do not communicate at all. There is a complete lack of trust between them, and they have very different views from each other. The children need stability. They are not completely comfortable in the father’s environment. It would be beneficial for them to have a little more structure than presently. And Mr [S] was concerned that Mr [Thomas] is not meeting “all their emotional and psychological needs”, given his limited insight into his own behaviour, how his behaviour affects the children, and his very limited insight into the children’s emotional and psychological needs.
Her Honour said in considering s 60CC(3)(l):
75. These children deserve the opportunity to grow up, sharing a relationship with both of their parents, free from the rigours of litigation. I am particularly conscious of that need. It is one of the pressing considerations in relation to how decisions are to be made for the children in a family where the parents are not able to have any communication whatsoever. It is impossible to imagine that shared care could work without leading to repeated litigation. The report writer made the observation that the father is “focussed on the legal process and sees the Court as the only way of resolving this issue.” I am concerned that if the parents are required to make decisions together, the Court would be the recourse for each disagreement.
Turning to a consideration of shared parental responsibility her Honour accepted the Family Consultant’s opinion that it was not in the best interests of the children for that to occur (at [77]). She observed that there was no communication between the parties and no prospect of that changing after the conclusion of the litigation (at [78]).
Her Honour concluded that the mother should have sole parental responsibility for the children and found that she had the greater insight and capacity when it came to meeting the children’s emotional and psychological needs (at [80]). She further concluded that for the same reasons a shared care arrangement as proposed by the father would not be in their best interests.
Her Honour accepted the proposal of the Independent Children’s Lawyer that the children spend four nights of each fortnight with the father and school holiday time.
The Appeal
It is important to note that the appeal is essentially against orders which reduced the time that the father spends with the children by one night in each fortnight and which changed the position from the parties having equal shared parental responsibility to the mother having sole parental responsibility.
The grounds of appeal were prepared by the father. They were clearly drafted by him in Chinese and then translated into English by an authorised translator. Each ground was supported by argument on the point.
The father also filed a summary of argument to which we have had regard. The summary was not directed to the grounds of appeal and was difficult to understand. The father was content if we had regard to the grounds of appeal and the submissions supporting each ground in the notice of appeal. We invited him though to direct us to any matters of importance in the summary of argument while he was discussing the grounds of appeal. He did not refer us to any aspect of the summary and thus we have not had regard to its contents.
We note that the father’s submissions were, in the main, broad allegations that many of her Honour’s findings and conclusions were wrong. When analysed, it was apparent that they were findings with which the father simply did not agree or which did not coincide with his submissions. In other aspects, he asserted that the trial Judge acted on wrong facts, claiming that much of what the mother had said in evidence was demonstrated to be lies. He gave no examples nor provided any detail of these asserted lies or their materiality to her Honour’s decision.
We propose to set out each of the father’s grounds and the submissions supporting them as they appear in his notice of appeal without amendment or alteration by us and then endeavour to address the matters raised in them.
Child allergy…
· This is the only fact in the Reasons and has been acknowledged by all parties involved. To make a correct recognition of this fact is vital to the making of the Order.
· Paragraph 35, 67, 72, 80, 81 & 82 of the Reasons are descriptions, comments and conclusions on this topic. Unfortunately, this medical procedural conclusion is wrong. My son’s allergy reaction to food was mild, which was already diagnosed by the family doctor that it was not life threatening. I correctly followed instruction of the family doctor and professional Australian organisations.
· Also because of this, my efforts and capabilities in looking after the child for a long period were not considered at all. Based on 190(3b) & 144(1a), (1b) & (2) of the Evidence Act 1995, I am hereby attaching my son [W’s] blood test and a copy of the brochure issued by the government professional organisation.
· I have already made this presentation to the Judge in the hearing on the 7th of July but it was not accepted by the judge.
At pages 108 and 109 of the appeal book there are two documents, one of which (108) appears to be the results of an allergy test on W and the other is a general information document about allergies. The father agreed that these documents were not tendered in the trial but were obtained by him after the decision was delivered. He made no application to adduce further evidence on the appeal and thus we do not propose to consider these documents in determining this ground.
The issue for her Honour was whether the father had appropriately guarded W against adverse effects resulting from his allergy, and she found that he had not. It is clear from her Honour’s reasons at [67] that it was W’s comments to the Family Consultant about his father not accepting that he had an allergy that was significant to her. Whether the allergy is life threatening or not is beside the point.
In his oral submissions, the father argued that this finding was significant to her Honour’s decision and that it suggested that he would put the child at risk. We do not agree. This was one of a number of factors considered by her Honour in addressing s 60CC of the Act.
The father has not demonstrated any error by the trial Judge in relation to this ground.
Negative comments from respondent
· The bulk of the contents in the Reasons (20,31,34,47,49,50, 53 to 61 and 75) were about negative comments I made about the respondent and concluded that I had serious problems. In the conclusion (77 & 78), it is concluded that “There is absolutely no communication.” According to Family Law Amendment Bill 3020, “This is known as the ‘Friendly Parent’ principles”. Disclosure should not make a parent ‘Unfriendly’.
· I am legally entitled to deny the allegations and entitled to make litigations. It must first fund [sic] out whether my Disclosure was true or false, whether it was for the best interest of the child, otherwise to label me ‘Unfriendly’ was wrong. Also, the respondent produced large amounts of false evidence in order to damage my integrity. This has been verified at the hearings and a criminal offence might have committed.
· The respondent’s reason for the extension of the child protection order was: extension of time may avoid payments of Child Supporter Fee (See Section 48) under the provisions of Section 118 of the Family Act.
· The Author of the Family report failed to differentiate between Equal Shared Care & Share Care. I have already avoided the proposal of 50%/50%. Similarly, the statement in Reasons Section 77 is obviously inconsistent with 61DA, 65DAA 5C1 of the Family Act.
· In fact, we have never stopped the contact with each other for the benefit the child. I also agreed to negotiate in any form whatsoever, unless the respondent claims for personal safety.
· I have already made this clear to the court at the hearing but it was not accepted by the judge.
As to the first two points under the ground, it seems that the father argues that her Honour failed to first consider whether his criticisms of the mother were valid and made in the children’s interests before she made adverse findings against him in relation to those criticisms.
The evidence, much of which came from the father, well entitled her Honour to conclude that the father was trenchant in his criticisms of the mother. However, her Honour’s concern was not whether the father had some justification for making the criticisms but the effect on the children of the bitter and hostile remarks each parent was making about the other, and particularly comments by the father about the mother. The evidence of the Family Consultant that we have set out in these reasons at [16] was that the children had been affected by this behaviour and would be at risk of further damage if it did not stop. Her Honour accepted and was influenced by this evidence.
The second part of the argument advanced by the father under this ground concerned her Honour’s decision to grant the mother sole parental responsibility for the children.
The father argued that her Honour’s finding at [78] that “[t]here is absolutely no communication” was wrong and that he and the mother communicated by email and text messages. That being the case, he said that they could share parental responsibility for the children and her Honour was wrong to order the mother have the sole responsibility.
In the light of her Honour’s findings about the relationship between the parents, and their capacity to communicate with each other in any meaningful way for the benefit of the children, her conclusion about the impossibility of equal shared parental responsibility was the only appropriate conclusion to which she could have come on that evidence.
The father has not made out any appealable error in relation to this ground.
Sudden change to parental responsibility care proposal by ICL solicitor
· At the last minute of the hearing, ICL solicitor changed the original proposal of Joint care to Sole care and changed the visit of 5 days per fortnight to 4 days (Outline of Case Document by ICL attached). The main reason was that the views of the author of the family report were adopted in the hearing. I need to point out, however, that before the drafting of the original proposal by ICL, they must have read the report. At the hearing, the point of the author was the same with that of the original proposal. During the entire time of the hearing, the author of the report was not present, the evidence was given over the phone. When I was questioning him, I pointed out directly to him that many opinions in his report were wrong. I asked: “If it is proved that I have wide knowledge & capability in caring for the child, would you change your original recommendations?” he answered: “Sure, you should make more time to care for the child”. ICL did not consider this statement made by the author, so I believe the ICL’s conduct was inappropriate.
· On the first day of the hearing, the respondent acknowledged that I was better than her on many aspects
· The judge accepted ICL’s new request.
As to the first submission under this ground, the father claimed that as the Family Consultant agreed with the position put to him in his questioning, the Consultant therefore should have changed his opinion. The father’s proposition was hypothetical and did not cause the Consultant to change his opinion. The Consultant’s answer did not represent a concession that the father’s proposition was correct.
The thrust of the following submissions was to challenge the conduct of the Independent Children’s Lawyer in amending the orders sought on behalf of the children from that originally proposed.
Of course just like the mother and father, the Independent Children’s Lawyer was entitled to reconsider his position having heard the evidence during the hearing. The father’s submission assumes that the change was because the Independent Children’s Lawyer adopted the Family Consultant’s opinion. There is no evidence to support that assertion. It may be that the Independent Children’s Lawyer changed the proposed orders after hearing the father’s evidence. In any event, it does not amount to appealable error on the part of the trial Judge.
Family violence, child’s negative view towards the father
· I object to the allegation of family violence. With reference to Family Act section 60CG, 65F &65P and Paragraph 33 of the “Reasons”, it should be viewed as the conclusion on the valid period of the Order, urgency and risk assessment. Based on Family violence Best Practice Principles 2011, the child’s best interest and for the meaningful relationship with the father should be first considered before valid evidence is produced in accordance with Evidence Act 16 & 16A when making allegation of family violence.
· The author of the family report concluded that the child’s view towards the father was negative which had reached the risk level. I strongly objected. In reference with Paragraph 38, 41, 42 45 & 46 of the “Reasons”, this conclusion was out of the area of a friendly witness. I pointed out this to the judge nut [sic] was not accepted.
Much of the father’s oral argument was taken up in submissions on this ground. His argument was that the findings of family violence ought not to have been made. He argued that the letter written by him to the mother should not have been admitted into evidence. He said that at the time he was stressed and suffering from the effects of high blood sugar and, as a result, what was written was not true. The father said that he made this submission to the trial Judge.
The reception of evidence and the weight to be attached to it was a matter for her Honour. In any event, as her Honour’s reasons demonstrate, the issue of violence was very much historical. As we have said, the issue for her Honour was the hostile relationship between the parents and the effect of that on the children.
The father further argued that her Honour was wrong when she referred to an Intervention Order being made in 2006 that required him to leave the home and which permitted the mother and children to return (at [6]). However, the father conceded that such an order was in fact made and, ultimately his submission became that her Honour had made an error as to the date of the order. He did not indicate what the correct date was, and thus it has not been demonstrated to us that her Honour erred in relying on the fact of such an order being made.
The father’s submission refers to a conclusion of the Family Consultant that the child’s view towards the father was “negative”. There is no such statement in either the report or the memorandum prepared by the Consultant, but it is perhaps understandable that misinterpretation may occur when the father is relying on a translation of the document. The paragraphs of her Honour’s judgment to which the balance of the submission refers are those in which she sets out parts of the Consultant’s opinion and makes findings of fact.
Again no appealable error has been demonstrated.
Lack of evidence, incorrect information & obscure facts
· Upon receiving the “Reasons” on the 6th of October, I found that there was a lack of evidence support for many of the rulings, statements were made incorrectly or based on evidence that did not exist. For example, Paragraph 16, 48, 55, 59 (refer to Family report 21/10/2010/24/11/2009, Paragraph 1), 50, 65, 66, 75 & 78 were all wrong and should have been enough to persuade the judge to rule otherwise.
The father submitted that the findings were “wrong” or based on what had been established to be the mother’s “lies”. No detail was given of the errors he said were made. The paragraphs in her Honour’s reasons to which the submission refer seem to us to be findings that do not accord with the father’s position.
No error on the part of her Honour as alleged is established.
Based on above Grounds of Appeal, I object to (1), (2), (3a) & (3b) of the Order
· Unlike emphasised by the family report (refer to “reasons” Paragraph 71), this order has no meaning to the respondent except the winning part. However, it turned my hope into despair and will undoubtedly put a distance on the relationship and trust between my child and me. It will affect the formation of the perception of right and wrong in the child’s mind. It has completely neglected my sacrifice and devotion to the child, made negative impact on me and reduced the time I can spend with my child for teaching him wide knowledge and for outdoor activities.
This is not a ground of appeal. It merely states the orders appealed from and the effect of those orders on the father.
Finally, in his oral submissions, the father argued that her Honour did not put sufficient emphasis on the children’s best interests and put too much emphasis on unimportant things. He referred to his assertion that the child W’s school performance was not improving as an example of a matter to which her Honour had paid insufficient regard. However, her Honour squarely dealt with that issue in her reasons.
Conclusion
It is perhaps helpful to point out that appeals against a discretionary judgment as here are governed by certain principles, long established in the law. The decision of the trial Judge is presumed to be correct and the appeal court can only interfere with a discretionary judgment where it is established that there is an error of law or of a material fact; where the trial Judge has taken account of irrelevant matters or failed to take into account relevant matters.
None has been demonstrated in this appeal.
The appeal will be dismissed.
Application in an Appeal
The father filed an application in an appeal on 2 November 2011 in which he sought an order that the Court provide and pay for the transcript of the proceedings.
At the commencement of the hearing, we indicated to the father that as he appeared to have been able to draft his grounds of appeal and the supporting submissions without recourse to the transcript we did not feel that it was necessary to order the transcript. We noted too that to do so would be unusual. However, it was indicated to the father that if, in the course of considering the matter, we formed the view that a transcript or part of it was required, we would make that order and notify him. We found that to be unnecessary and we will thus dismiss the application.
Costs
In our view, there should be no order as to costs in relation to the appeal. Neither party was legally represented.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Strickland & Ainslie-Wallace JJ) delivered on 15 February 2013.
Associate:
Date: 15 February 2013
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