Vasseur & Gauss
[2022] FedCFamC2F 1277
Federal Circuit and Family Court of Australia
(DIVISION 2)
Vasseur & Gauss [2022] FedCFamC2F 1277
File number(s): PAC 6008 of 2019 Judgment of: JUDGE NEWBRUN Date of judgment: 20 September 2022 Catchwords: FAMILY LAW – parenting - proposed change of surname for child – best interests of child – proposed change of surname not made Legislation: Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC Cases cited: Flanagan & Handcock (2001) FLC 93-074
Coombe & Stone [2011] FamCAFC 232
Division: Division 2 Family Law Number of paragraphs: 72 Date of hearing: 8 September 2022 Place: Parramatta Solicitor for the Applicant: Mr Romeo The Respondent appeared in person ORDERS
PAC 6008 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR VASSEUR
Applicant
AND: MS GAUSS
Respondent
order made by:
JUDGE NEWBRUN
DATE OF ORDER:
20 september 2022
THE COURT ORDERS THAT:
1.The Father’s proposed final Order 23 set out in his Initiating Application filed 3 December 2019 is dismissed.
2.The Father’s proposed Minutes of Orders, attached to his Case Outline filed 7 September 2022, relating to a proposed change of surname for the Child, X, is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Vasseur & Gauss has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
Introduction
This hearing relates to the Child X born in 2018 (“the Child”).
The hearing solely relates to the Father’s proposed final parenting Order that the Child’s name be changed to X Vasseur-Gauss or X Gauss-Vasseur. The Father’s proposed Minutes of Orders, in this context, is attached to his Case Outline filed 7 September 2022. The Mother opposes this proposed Order and related proposed Orders.
On 9 November 2021, the Court made final parenting Orders by consent, inter alia, that the parties have equal shared parental responsibility for the Child; the Child live the Mother; that the Child spend time with the Father on a graduating basis leading to, once the Child commences school, the Child spending time with him each alternate Friday from after school until the following Sunday at 4pm. The Orders also provided for the Father to spend block holiday time with the Child from January 2023, video conferencing time with the Child each Monday night at 6.30pm, and time with the Child on special occasions.
Material relied upon
The Father relied upon his:
(a)Initiating Application filed 3 December 2019;
(b)Affidavits filed 3 December 2019, 3 December 2021, and 7 September 2022;
(c)Case Outline filed 7 September 2022;
(d)Family Report dated 17 August 2021.
The Mother relies upon her:
(a)Response filed 3 December 2021;
(b)Affidavits filed 3 December 2021 and 8 September 2022;
(c)Family Report dated 17 August 2021.
Evidence
In determining this case, the Court has had regard to all the written evidence referred to above together with the oral evidence given. Throughout these Reasons the Court will refer to a number of facts taken from that evidence. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact the Court is required to assess the evidence on the balance of probabilities. In order to limit the size of this judgment not all factual issues will be addressed, and the Court will not set out the entirety of the evidence. Evidence relevant to the Court’s determination will be considered either in this section or whilst addressing the s.60 CC considerations (i.e. s 60 CC of the Family Law Act 1975 (Cth) (the Act) (see below).
The Court notes that the Mother, at the final hearing, did not have legal representation.
The Father’s Affidavits
The Court does not propose to set out the entirety of the Father’s two Affidavits.
The Mother is aged 25 years. The Father is aged 26 years.
Again, the Child was born in 2018. The parties met in about early 2018. Prior to the parties conceiving the Child they had met each other about three times in total. They were not in a boyfriend/girlfriend relationship prior to the conception of the Child. At the time of conception of the Child they did not know much about each other.
Initially the Father found it difficult to accept the news of the Mother’s pregnancy and he requested that the Mother obtain a more accurate test to ascertain the likelihood that she was actually pregnant. At this time, the Father was a university student working casually as a hospitality worker.
Prior to the Child’s birth the Father had limited interaction with the Mother. The Father concedes that he was not exactly the most supportive person towards the Mother prior to the Child’s birth. They had limited contact up until the Mother was about 6 to 7 months pregnant. They then met to discuss how they would approach co-parenting for the Child. During that first meeting the Mother informed the Father that the Child’s name had been decided and that he would be having the Mother’s last name “Gauss”. The Father had agreed to this approach and jokingly remarked that children with two last names were always challenging for school teachers to grasp and other children may mock him.
Following this meeting the Father requested that the Mother have a paternity test taken, however it was not until the Child was about three months old that the paternity test was undertaken.
The Father asserts that since the paternity results he has constantly raised the discussion around the Child’s surname being changed with the Mother. He asserts that the Mother’s rebuttals have included statements to the effect, inter alia, “you accepted the decision before he was born and it is final”, and, “it is a part of his identity, he repeats it all the time and we cannot change it.”
The Father asserts that he has always believed the Child’s identity is made up of both his parents. The Father asserts his belief that the Child should share both the parent’s surnames, which he asserts is “representative of both his identities”. He asserts that he wants the Child to be able to identify with his paternal family as well as his maternal. He asserts that the Child is “currently missing something in his identity and the changing of his name will only build upon what he has gained.” He asserts that he comes from a very proud Country B family and that it is important in his cultural heritage that sons can identify themselves with their fathers. He asserts that it is important to him that the cultural link with the Child’s family and his father is recognised, in a way that builds upon his identity and not to the detriment of his maternal (sic paternal) family.
The Father states that the Child is a smart, healthy active child who is loved and cared for by the Mother and her family and by himself and his family.
The Father states that the Child’s new half-brother is named C.
The Mother’s Affidavits
The Mother asserts, in her Affidavit filed 3 December 2021, that she is currently pregnant expecting to give birth in 2022. She states that this pregnancy is from her current relationship with Mr D.
The Mother asserts that after the pregnancy (with the subject Child) was confirmed, she notified the Father of the pregnancy and the Father responded with words to the effect of, “you’re lying, you’re not pregnant”, “fuck off, and ruin someone else’s life”, “a baby is not part of my life plan”, “I want a paternity test” and insisted the Mother should get an abortion and that he would cover the costs. The Mother advised the Father that she could not go ahead with an abortion.
The Mother confirms a meeting with the Father at about the time she was 7 months pregnant with the Child. At this meeting they discussed many decisions for the Child one of which was the name of the Child. The Father agreed that the Child should have the Mother’s last name and said words to the effect, “Kids with double barrelled last names get picked on.”
The Mother annexes to her above Affidavit text messages passing between the parties in about early September 2018. The Court refers to those text messages. The Father told the Mother that he had thought about a middle name for the Child being X, who was a Country B saint and also his Catholic name. The Father stated in this context that (X) was a saint focused on preaching and scholarship, and the Father stated he was Roman Catholic. The Mother responded by stating, "I want you to be able to feel a part of him and I’m happy to have his middle name as X, it's a nice name…I think it will be a nice connection for him and you to have.” The Father then replied stating, inter alia, “Yeah I figured as much that’s why I said something now rather than later. Thanks I really appreciate Ms Gauss…and I appreciate you allowing that connection for me I really do.” The Mother replied stating, inter alia, “ That’s okay, it’s important to me that the baby has a relationship with you…I’m sure he will love that his dad gave him his middle name and the reasons why he picked it. I liked E after my grandads and it flowed nicely I thought but so does X and he has one of my grandads last names so I think a connection to his dad is lovely.”
The Father did all things necessary as the paternal parent to be listed on the Child’s birth certificate and provided proof of identity to obtain the birth certificate. The Mother paid for and registered the Child’s name through Birth Deaths and Marriages to obtain the Child’s birth certificate. At no time during the registration of the Child’s name did the Father dispute being listed on the birth certificate or the name, “X Gauss.” Once the Mother received a copy of the Child’s birth certificate, she provided a digital copy to the Father via email.
The Mother asserts that the Child is a bright and happy child meeting all his milestones and is loved and cared for by his family.
Oral evidence of Mother
The Mother gave oral evidence.
The Mother was cross-examined by the Father’s solicitor.
In relation to the allegation in paragraph 4 of the Father’s affidavit filed 7 September 2022 that the Child told the Father, “Mummy says no Vasseur”, the Mother stated that she tells the Child that his name is X Gauss and that Vasseur is not his name.
In relation to the allegation in paragraph 5 of the Mother’s affidavit filed 8 September 2022 that she told the Child, “Mummy would be ok if you had two (last names)”, the Mother stated that the reason she spoke to the Child in this way was to take into account the Child’s feelings and not her feelings. The Mother stated that she does not agree to a surname change for the Child for many reasons.
Family report
Ms F was the family report writer; her family report is dated 17 August 2021. She had interviews with the parties, the maternal and paternal grandmothers, and the paternal grandfather in about mid 2021. The Child’s relationships with the adults of the family report assessment were not assessed via observations and nor was an individual assessment with the Child able to be conducted. In this context, the family report writer stated that there were no issues identified regarding the Child’s relationships with each of the adults of the family report assessment and therefore it did not appear that this posed a significant limitation.
The Mother referred to her new partner Mr D (now aged 25 years).
The maternal grandmother is aged 50 years, and the maternal grandfather is aged 50 years. The paternal grandfather is aged 59 years, and the paternal grandmother is aged 56 years.
The Father reported that he usually stays at the paternal grandparent’s home when he has the Child overnight as it is more convenient at this stage.
The family report writer stated that one issue in dispute was whether or not the Child’s surname should be changed to include “Vasseur”.
The Father told the family report writer that as a parent, the Mother was caring, loving and looks after the Child, and he stated that the Mother puts the Child first and that he could not fault her as a mother.
Mr Vasseur identified that he has limited capacity to spend time with X during the week because of his employment commitment, stating that although “X is my number one priority” he also has his own “prospects” to pursue in terms of his career. He said that “once my life calms down and I have my own place, I want that relationship with X”. Mr Vasseur said that ultimately he proposes that X will spend time with him on alternate weekends from Friday afternoons to Sunday evenings once he has commenced school.
The Mother told the family report writer that she feels confident that the Father loves and cares for the Child and that he devotes his time when they are together.
The Mother said that she is aware that the Father seeks to change X’s surname so that it includes both parent’s surnames. She said that she does not see any benefit to X to having his name changed because it was the decision that she and the Father made together at the time of registering X’s birth. The Mother said that the Father was initially reluctant for X to have a “double barrelled” surname because he thought he would be teased by other children.
Both parties spoke positively of their current coparenting relationship.
The Mother stated that since Orders have been made there has been a massive shift in the coparenting relationship because it has provided the parents with a clear structure for the Child to spend time with the Father and that it has cooled things down.
The Mother effectively stated that she now has positive relationships with the paternal grandparents.
Under the heading Evaluation, the family report writer stated, inter alia, that:
(Para 95) At times, during interview, [Mr Vasseur] seemed self-focussed as it would seem in part his priority is pursuing his career and this may have included him moving away from [X] to do so. This in turn provides limited capacity for [Mr Vasseur] to spend time with [X] on a regular basis. It may be that [Mr Vasseur] prioritising his career would help him develop financial security which may contribute to him being able to provide for [X’s] needs in the long term. However, the limited time that he has to spend with [X] will impact the quality of the relationship between them. Additionally, some of his expectations regarding [X] spending long periods of time away from [Ms Gauss] particularly during infancy seemed more focused on his own needs rather than [X’s] at that time.
(Para 96) The impression given by [Mr Vasseur], despite his stated intentions, is that his role as parent is not in fact his priority, and this may be the result of the pregnancy continuing against [Mr Vasseur’s] stated wishes. His attitude and limited capacity to prioritise his role as [X’s] parent is not necessarily erroneous or negligent of him as it seems he has not overextended his ability to commit to spending time with [X], which will at least support his and [X’s] relationship, and, [Ms Gauss] seems able and willing to provide the bulk of [X’s] care. However, the mismatch between his stated intentions and his actions may cause conflict within the co-parenting relationship as it may that with time [Mr Vasseur] seeks a more significant involvement when it suits him, which may cause disruption to [X’s] and [Ms Gauss’] lives.
(Para 97) It would seem that [Mr Vasseur] has experienced pressure from the paternal grandparents to take responsibility and meet his obligations to [X], based on their assessment of what that should include.
(Para 98) [Ms Gauss] gave the impression of being child focussed in that she seems to have structured he life around [X’s] needs and given considerable thought as to how his relationships within his family can be supported. Despite allegations made that she has not facilitated [X’s] relationship with [Mr Vasseur] it would appear that she has in fact been willing and able to encourage [X’s] relationship, which includes having (along with [Mrs Vasseur]) developed a functional relationship with [Mrs Vasseur] to enable [X] to spend time with his extended paternal family independently of [Mr Vasseur]. Although it seems that at times [Ms Gauss] has had some trepidation for [X’s] wellbeing with [Mr Vasseur], and despite there being quite high levels of acrimony, she has facilitated [X’s] time with [Mr Vasseur] is some capacity since his birth. If the reports of [X’s] relationship with [Mr Vasseur] and his paternal grandparents are accurate, the quality of [X’s] relationships with [Mr Vasseur] and his paternal grandparents, is likely to have been strongly supported and encouraged by [Ms Gauss].
(Para 99) Although it seems that [Ms Gauss’] decision to proceed with the pregnancy, work towards co-parenting [X] with [Mr Vasseur] and establish a functional relationship with [Mrs Vasseur], for [X], may not have aligned with the maternal grandmother’s views, it would seem that [Ms Gauss] has been able to continue to prioritise [X’s] need to have a meaningful relationships with his paternal family. This again is likely to be of credit to [Ms Gauss] capacity as a parent and her ability to prioritise [X’s] needs above her own and others.
(Para 106) Both the maternal and the paternal grandparents, but primarily [Mrs Vasseur] and [Mrs Gauss], appear to offer a great deal of practical and emotional support to [Mr Vasseur] and [Ms Gauss], respectively. The support of both sets of grandparents appears to be valued by both parents, and, their ongoing support as grandparents is likely to be of benefit to [X]. It would appear that the capacity of [Ms Gauss] and [Mrs Vasseur] to facilitate [X’s] time with the paternal grandparents, separate to that of [X’s] time with [Mr Vasseur’s], has contributed to [X] reportedly having positive and established relationships with his paternal grandparents.
(Para 107) The adults reported that, with time, the difficulties within the two family systems as subsided significantly. This is likely to be benefit to [X] as it will minimise his risk of exposure to conflict within his family.
(Para 113) There is a dispute between the parents regarding changing [X’s] name to include [Mr Vasseur’s] surname. A change in [X’s] surname, may support his sense of connection to his paternal family, however, he appears to be already developing strong relationships with his father and paternal grandparents and will likely develop a strong sense of family connection with them regardless of his surname. A change in [X’s] surname may be advantageous as it will provides a continuity of his connection with his paternal family, by name. If however, [Mr Vasseur] has previously accepted [X’s] surname then it may appropriate to allow it to remain as it is as this was a previously agreed decision between the parents then consideration to [X’s] surname remaining as ‘[Gauss]’ could be considered.
The Court accepts the evidence of the family report writer subject to any view of the Court to the contrary whether express or implied, as discussed below under s 60CC of the (the Act).
Relevant legal principles
Section 60B of the Act sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.
In deciding whether to make a particular parenting Order in relation to a child, a Court must regard the best interests of the Child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the Child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
Under section 60CC(2A) of the Act, the Court, in applying the meaningful relationship primary consideration and the need to protect primary consideration under section 60CC(2) of the Act, is to give greater weight to the need to protect primary consideration.
The Court has considered the decision in Flanagan & Handcock (2001) FLC 93-074, and the cases referred to therein, relating to change of surname applications (for example see paragraphs 36-42 in Flanagan). The Court refers to the decision in Coombe & Stone [2011] FamCAFC 232 in this context (see, for example, paragraphs 44-45 of the decision in Coombe).
The best interests of the Children
Section 60CC considerations
(2)(a) (the benefit to the Child of having a meaningful relationship with both of the Child’s parents:a primary consideration)
The Child has a meaningful relationship with the Mother and will benefit from a continuance of that relationship. The Child’s primary attachment is to the Mother; the Mother has been his primary carer from birth to date.
The Child has a meaningful relationship with the Father and will benefit from a continuance of that relationship.
The Mother sought to facilitate the Child’s relationship with the Father after the Child’s birth. Since the final consent parenting Orders of 9 November 2021, she has been facilitating those Orders. The Mother promotes the Child’s relationship with the Father and his extended paternal family. It is likely that the Mother will continue to facilitate those Orders providing, inter alia, for the Child to spend increasing time with the Father (e.g. block time during school holidays) on a graduating basis. It is likely that the Child’s meaningful relationship with the Father will be enhanced through spending such increased time with him on a graduating basis whether or not the Child’s surname is changed as sought by the Father. In this context, the Court refers to the evidence of the family report writer that the Child appears to be already developing strong relationships with his father and paternal grandparents and will likely develop a strong sense of family connection with them regardless of his surname.
(2)(b) The need to protect the Child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Not applicable.
Section 60CC(3) additional considerations
(3)(a) Any views expressed by the Child and any factors (such as the Child maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the Child’s views
The Child is too young to express a relevant view.
(3) (b) The nature of the relationship of the Child with each of the Child’s parents; and other persons (including any grandparent or other relative of the Child)
The Court refers to its discussions above under the meaningful relationship primary consideration. The Child also enjoys positive relationships with the maternal and paternal grandparents; it is likely that those relationships will be enhanced through the Child spending increased time with the Father, on a graduating basis, whether or not the Child’s surname is changed as proposed by the Father.
(3)(c) The extent to which each of the Child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the Child; and to spend time with the Child; and to communicate with the Child
The Mother appears to have been making the major decisions for the Child up until the final consent parenting Orders of 9 November 2021 when the parties agreed to an Order for equal shared parental responsibility. Since those Orders, there has been a positive degree of coparenting occurring between the parties.
(3)(ca) The extent to which each of the Child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the Child
The parents would appear to have maintained the Child when the Child is in their respective care, however the preponderance of the Child’s care, timewise, has been provided by the Mother. The Father pays some child support.
(3)(d) The likely effect of any changes in the Child’s circumstances, including the likely effect on the Child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the Child), with whom he or she has been living
The Court refers to its discussion below under s(3)(m).
(3)(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the Child’s right to maintain personal relations and direct contact with both parents on a regular basis
Not applicable.
(3)(f) The capacity of each of the Child’s parents; and any other person (including any grandparent or other relative of the Child), to provide for the needs of the Child, including emotional and intellectual needs
Both parties would appear to have such capacities.
(3)(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the Child and of either of the Child’s parents, and any other characteristics of the Child that the Court thinks are relevant
The Child appears to be progressing and developing well.
(3)(h) If the Child is an Aboriginal child or a Torres Strait Islander child: the Child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right
Not applicable.
(3)(i) The attitude to the Child, and to the responsibilities of parenthood, demonstrated by each of the Child’s parents
The Mother has demonstrated appropriate attitudes towards the Child and her responsibilities of parenthood.
The Father belatedly decided to become involved in the (prospective) Child’s life when the Mother was about 7 months pregnant with the Child. Over time, since then, and particularly since the making of the final consent parenting Orders on 9 November 2021, the Father has demonstrated appropriate attitudes towards the Child and his responsibilities of parenthood.
(3)(j) Any family violence involving the Child or a member of the Child’s family.
Not applicable.
(3)(k) If a family violence order applies, or has applied, to the Child or a member of the Child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the Court in, or in proceedings for, the order; any other relevant matter.
Not applicable.
(3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the Child.
Not applicable.
(3)(m) Any other fact or circumstance that the Court thinks is relevant.
Should the Child’s surname be changed as proposed by the Father, the Child, aged almost 4 years, is likely to experience some confusion of identity, taking into account that the Child has been used to having the surname Gauss for his whole life, the Mother’s surname is Gauss, and the Mother’s partner’s surname is Mr D. In this context, it was not contended by the Mother that any such confusion would be a long-term effect upon the Child. Nevertheless, as discussed above, the Child’s meaningful relationship with the Father and positive relationships with the paternal extended family should be enhanced whether or not the Child’s surname is changed as proposed by the Father, and accordingly, in the view of the Court, the Child would be unnecessarily subjected to a confusion of identity by a new surname as proposed by the Father.
The Court takes into account that the parties agreed, shortly prior to the Child’s birth, that the surname of the Child should be Gauss, the Mother’s surname. And the Court further takes into account that the parties agreed, again shortly prior to the Child’s birth, and at the instance of the Father, that the Child’s middle name should be X which would enhance the Child’s connection with the Father; the Court refers to the parties’ text message exchanges in this context.
The Court takes into account that the Child’s present surname, Gauss, is a relatively straightforward surname to pronounce and spell, compared to the Father’s proposed new surnames for the Child being, “Gauss-Vasseur” or “Vasseur-Gauss”. These hyphenated surnames proposed by the Father will likely require the Child, over the next 14 years, to clarify and spell out either of those surnames with third parties. There is a real risk that the Child will be the subject of embarrassment, in the school context in particular, having to use, or be referred to by, either of those surnames.
The Court takes into account that there is a real risk that the Child will experience some embarrassment over a not insignificant period if his surname is changed as proposed by the Father when the Mother’s surname is Gauss; inter alia, there is a real risk that he will be required to explain to third parties this difference.
The Court has not overlooked the evidence of the family report writer at paragraph 113 of the family report relating to the possibility that a change of the Child’s surname as proposed by the Father may support his sense of connection to the paternal family. However, as discussed above, the Child bears the middle name X which will assist him in understanding his connection and identity with the Father, and the Child’s meaningful relationships with the Father and positive relationships with the paternal extended family will likely be enhanced through the facilitation of the final parenting consent Orders relating to the Child’s time with the Father irrespective of whether or not the Child’s surname is changed as proposed by the Father.
As to the Father’s contention that it is important in his Country B cultural heritage that sons can identify themselves with their fathers, again, the Child will bear the middle name X, and the Father will have ample opportunity to expose the Child to his Country B cultural heritage through, inter alia, discussions with him, and time spent between the Child and the paternal extended family.
As to the effect a change of surname for the Child, as proposed by the Father, might have on the Mother, there is a real risk that the Mother will be required to explain to third parties the reason for the difference between her surname and the different surname of the Child; there is a real risk accordingly that she will suffer embarrassment and inconvenience having to do so.
On balance, the Court is of the view, evaluating the above considerations under section 60CC of the Act, and having regard to relevant legal principle, that it will be in the best interests of the Child to dismiss the Father’s proposed surname change for him. The Court makes Orders accordingly.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 20 September 2022
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