WEIR & EBBERTS
[2009] FMCAfam 776
•10 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
WEIR & EBBERTS [2009] FMCAfam 776
FAMILY LAW – Parenting – interim – spend time arrangements – young children – concerns raised about passive smoking in vicinity of children – father restrained from allowing third parties to smoke in the vicinity of children.
Family Law Act 1975, ss.60B(2), 60CA, 60CC(2), 60CC(3), 65DAA, 65DAA(3)
GBR v MSL in (2003) FMCA 614
Goode v Goode (2006) FLC 93‑286
McCoy v Wessex (2007) 38 Fam LR 513
PS v OS (2007) FMCAfam 285
Applicant: MS WEIR
Respondent: MR EBBERTS
File Number: MLC 5372 of 2009
Judgment of: Monahan FM
Hearing date: 10 July 2009
Date of Last Submission: 10 July 2009
Delivered at: Melbourne
Delivered on: 10 July 2009 REPRESENTATION
Counsel for the Applicant: Mr G. Combes
Solicitors for the Applicant: Aughtersons
Counsel for the Respondent: Mr R. Curtain
Solicitors for the Respondent: Mackinson Jacobs Horton & Irving Pty Ltds ORDERS
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
(1)The interim parenting orders made on 8 July 2009 be varied to provide that the children [Y] born [in] 2006 and [X] born [in] 2007 (“the children”):
(1.1.)live with MS WEIR born [in] 1977 (“the Mother”); and
(1.2.)spend time and communicate with MR EBBERTS born [in] 1984 (“the Father”) as follows:
(1.2.1.) from 10 am Saturday to 5.00 pm Sunday each week with such time to commence on 18 July 2009;
(1.2.2.)at the [omitted] Childcare & Early Learning Centre in [H] (“the Centre”) at times arranged by the Centre; and
(1.2.3.) at such other times as agreed between the parties;
and that unless the parties agree to the contrary, all overnight time is to be spent at the home of the paternal grandparents, being [Property C], in the State of Victoria.
(2)That unless the parties agree, changeover will occur outside of [C] Police Station.
(3)Both parties shall do all things necessary to keep the other informed about the children’s activities, health, education and development (preferably through the use of a communication book or electronic equivalent).
(4)For 12 hours immediately prior to the commencement of any time spent with the said children (including any period during which the children live with him), and during all such time spent, the Father be restrained by injunction from ingesting, consuming or using, or otherwise being under the influence of, alcohol and/or any legal or illegal drug or substance, save and except for:
(4.1)any legal medication prescribed for the Father by a registered medical practitioner, and taken or used by the Father strictly in accordance with such prescription; and
(4.2)any over-the-counter medication or pharmaceutical substance ordinarily sold in major supermarkets, and taken or used by the Father strictly in accordance with the directions appearing on such medication or pharmaceutical substance.
(5)The Father is hereby restrained from permitting any third party to consume alcohol to excess in the presence of the children.
(6)The Father is hereby directed to take his diabetic medication as advised by his general practitioner and to be assessed by an appropriate expert for any depression and take all medication as prescribed by such health expert.
AND THE COURT FURTHER ORDERS THAT:
(7)Pursuant to section 11F of the Family Law Act 1975, the Mother and the Father shall attend appointments with a Family Consultant of the Federal Magistrates Court of Australia at Melbourne today, 10 July 2009, with the Family Consultant to provide an oral report to the Court today after the completion of these appointments.
(8)Pursuant to section 13C of the Family Law Act 1975, the Mother and Father:
(a)attend and complete, as soon as practicable, the Parenting Apart post separation parenting program (“the Program”) at an organisation as nominated by the Dispute Resolution Coordinator of the Federal Magistrates Court of Australia;
(b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program;
(c)pay and otherwise be responsible for all costs associated with the Program; and
(d)provide an appropriate certificate of completion of the program to the other parties or their solicitors.
(9)The parties attend a Conciliation Conference with a Registrar of the Federal Magistrates Court of Australia at the Melbourne Registry on 22 September 2009 at 9.15 am.
(10)The parties ensure that no later than seven days prior to the date fixed for the Conciliation Conference, each party send to the other, and the nominated Registrar or organisation:
(a)an Outline of Case document;
(b)a copy of a market appraisal or valuation of any asset or financial resource, the value of which is in dispute;
(c)valuations of any superannuation interests;
(d)a copy of the actual terms of orders required to give effect to their settlement proposal; and
(e)written confirmation by each party or their solicitor that:
(i)all relevant documents have been exchanged between the parties; and
(ii)the superannuation trustee of any fund that may be the subject of a splitting order has been accorded procedural fairness.
(11)The matter be adjourned to this Court on 26 October 2009 for Final Hearing (with an estimated hearing time of 2 days).
(12)In the event of any applicable filing, setting down, mediation or enforcement fee or fees (“the Fees”) not having been waived, the party responsible for the payment of the Fees or any of them do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Federal Magistrates Court Regulations.
(13)The Mother make, file and serve any further Affidavit to be relied upon by 4.00 pm 21 days prior to trial.
(14)The Father make, file and serve any further Affidavit to be relied upon by 4.00 pm 14 days prior to trial.
(15)The Independent Children’s Lawyer make, file and serve any Affidavit to be relied upon by 4.00 pm 7 days prior to trial.
(16)On or before 4.00 pm 2 days prior to trial, each party and the Independent Children’s Lawyer must make, file and serve an Outline of Case document including the following:
| PROPERTY 1. a list of the documents to be relied upon; 2. a brief chronology; 3. a list of all of the assets, liabilities and financial resources claimed to be part of the asset pool; 4. a list of contributions claimed or contended for; 5. a list of other factors relied upon (s.75(2) factors); 6. the percentage adjustment contended for; 7. the main contentions on disputes as to: 7.1. what items are to be included in the pool; and 7.2. the value of each asset in the pool; 8. a statement of the precise orders sought; 9. (if applicable) whether the trustee of a superannuation fund has been afforded procedural fairness in relation to a proposed superannuation splitting order; and 10. one table between the parties setting out the values of assets and liabilities to be relied on at the hearing, each to be marked “agreed” or “in dispute”. | PARENTING 1. a list of the documents to be relied upon; 2. a brief chronology; 3. an outline of contentions with respect to: 3.1. whether the presumption of equal shared parental responsibility applies (s.61DA), 3.2. the considerations relevant to equal time and substantial and significant time (s.65DAA); 3.3 each of the considerations relevant to determining the best interests of the child(ren) (s.60CC factors); 3.4. other relevant considerations (including, ss.60CG, 61F, 65DAB, 65DAC, etc); and 3.5. any other matters relevant to the decision; and 4. a statement of the precise orders sought. |
(17)All extant interim applications be dismissed.
AND THE COURT NOTES THAT:
A.In the event of non compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:
(a)the filing of documents; or
(b)any other procedural issues,
the application may be struck out, the proceedings may be directed to proceed undefended or the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.
B.To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial Federal Magistrate, or by another appropriate Court officer, shortly prior to the final hearing date.
C.That pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Weir & Ebberts is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNEMLC 5372 of 2009
MS WEIR Applicant
And
MR EBBERTS Respondent
REASONS FOR JUDGMENT
Introduction
1.This is an application by the mother, full name Ms Weir, born [in] 1977 (“the mother”), who is seeking various parenting orders in relation to the two children: [Y] (“[Y]”), born [in] 2006 and [X] (“[X]”), born [in] 2007 (“the children”). More specifically, the applicant is seeking that she and the respondent father have equal shared parental responsibility for the children; that the two children live with her; and that the children spend time with the respondent father “as agreed between the parties”.
2.The mother is also seeking a property settlement under section 90SM of the Family Law Act 1975 (“the Act”).
3.The mother’s application is supported by her affidavit, sworn 18 June 2009 and filed 19 June 2009 (“her first affidavit”); her affidavit, sworn 22 June 2009 and filed 23 June 2009 (“her second affidavit”); and her affidavit sworn and filed on 9 July 2009 (“her third affidavit”).
4.The mother was legally represented by Mr G. Combes of Counsel today.
5.The respondent father is Mr Ebberts, born [in] 1984 (“the father”). In his response, filed on 8 July 2009, the father opposes the order sought by the mother and he seeks different parenting orders in relation to the children. He also seeks various property orders. In relation to the parenting matters, the father is seeking an order firstly, for equal shared parental responsibility in respect of the two children, secondly, that the children live with him; and that, thirdly, that the children spend time with their mother in a supervised time arrangement.
6.The Respondent father relies on his affidavit sworn on 7 July 2009 and filed on 8 July 2009. He also relies on two further affidavits: firstly the affidavit of Ms R Ebberts, the paternal grandmother, sworn on 7 July 2009 and filed on 8 July 2009; and secondly the affidavit of [Police Officer] Ms B, sworn on 9 July 2009 and filed in Court today.
7.The father is legally represented by Mr Curtain of Counsel, today.
Background
8.It is clear that the parties were living in a de facto relationship. By consent, the Court made a declaration to that effect, pursuant to section 90RD of the Act, on 8 July 2009.
9.The parties, however, differ on when cohabitation commenced. The mother alleges, in the first affidavit, that it was in September 2005, and the father, in his affidavit, alleges that it was in January 2006. They both agree, however, that they separated in May 2009.
10.As indicated, there are two children of the relationship, [Y] and [X], who are the subject of today’s interim parent proceedings.
11.Neither party has re-partnered since separation. According to the evidence presented, the mother currently lives in [R] at a home she owns (and resided in with the father until separation). Since separation, the father has resided with his parents (the paternal grandparents) at their home at [C].
12.The matter came before me in my duty list on 8 July 2009 and, on that occasion, various Orders were made by consent. Apart from a number of Orders relating to property, there were also some procedural Orders made on that occasion. The substance of the Orders made last Wednesday were that the children live with the mother and, spend time with the father at the children’s childcare centre.
13.The matter was adjourned for an interim hearing today, to deal with parenting matters only. At the commencement of the hearing, I indicated that the Court could make available a family consultant and, consequently, pursuant to section 11F of the Act, the parties attended with Ms G. As the parties were unable to resolve their parenting differences today, I asked Ms G to give a brief oral family report in Court this afternoon, and thereafter she was briefly cross-examined by the parties’ respective Counsel.
Issues today
14.The dispute today is limited to whether the children should spend time with their father, and if so, under what circumstances.
15.There is no issue about equal shared parental responsibility as the parties have agreed to orders to reflect the presumption that applies in any event.
16.While the father is seeking final Orders to have the children primarily live with him, he is clearly only pressing to spend time with the children for substantial and significant time, today.
Agreed and disagreed facts
17.Counsel for both parties indicated that they were in disagreement today over the following matters: firstly, the amount of time that the father should spend with the children; and, secondly, under what circumstances. Ms G, in her oral report, confirmed this, and informed the Court that the mother indicated to her she would not oppose the father spending time with the children at their childcare place and on alternate weekends, provided the father secure separate and appropriate accommodation. Alternatively, the father could spend time with the children at her home on the Saturday and Sunday of each fortnight, from 9 am to 5 pm, with her not being present during that time.
18.Ms G indicated that the mother opposes the father spending time with the children at the home of the paternal grandparents for three reasons: firstly, the risk of the children being affected by passive smoke, given that the maternal grandmother is a cigarette smoker; secondly, the risk to the children because they would not be sleeping in separate bedrooms, and the mother maintaining that the children, being of the opposite sex and currently sleeping in separate bedrooms, necessitated separate bedrooms for their health and safety; and thirdly, that there is a risk to the children if the father and/ or the paternal grandparents consume alcohol in the presence of or during their care of the children.
19.Ms G made it clear in her oral report that the primary issues of concern to the mother were the passive smoking and alcohol consumption issues.
The parties submissions
20.Mr Combes, on behalf of the applicant mother, submitted that the primary issues of concern also included the mental health issues affecting the father, in addition to the issues stated by Ms G. Mr Combes (and Ms G) spoke of the mother’s concern about the compliance issues associated with keeping the children safe from passive smoking. The mother also alleges that the paternal grandparents “drank each night”, although it was conceded that the paternal grandfather was not a cigarette smoker.
21.Mr Combes also submitted that the mother’s proposals best catered for the children in that they would not be forced to share a bedroom if they remained at the mother’s home.
22.Overall, Mr Combes urged caution, given the father’s diagnosed depression, and asked the Court to wait until the psychiatric assessments had been done before allowing any overnight time to be spent, by the father, with the children.
23.Mr Curtain, for the father, asked the Court to note the inconsistency in the mother’s position, given that she had indicated to the family consultant that she would be agreeable to the father having overnight time with the children provided he secured separate and suitable accommodation, but not at the paternal grandparents’ home.
24.Mr Curtain submitted that the psychiatric issue was, in his words, “a red herring”, given what the mother had said to Ms G.
25.Mr Curtain submitted that the smoking issue was easily resolved by the undertaking given by the grandmother to smoke outside her home whilst the children were present. Further, he submitted that the alleged drug taking by the father was “a fabrication”.
26.Mr Curtain also questioned the behaviour of the mother and, in particular, relied on the evidence of [Ms B, Police Officer] in relation to the incident which occurred [in] June 2009.
27.Mr Curtain noted that both parties had consented to psychiatric assessments being done.
28.In relation to the bedroom accommodation issue, Mr Curtain indicated that the father proposed that the infant, [X], reside in the father’s bedroom (in a cot), and [Y] would have the other bedroom, which was formerly the study.
The law
29.The Full Court decision of Goode v Goode (2006) FLC 93-286 guides the Court’s approach in making interim decision and interim orders in relation to parenting disputes. Paragraph 81, the Full Court noted:
“In making interim decisions, the Court will often be faced with conflicting facts, little helpful evidence and disputes between parents as to what constitutes the best interests of the child.”
This matter is such a case. More specifically, this raises the reality that the Court cannot fully determine issues of credit today, as the evidence being presented by the parties has not been tested by cross-examination. That having been said, in the same paragraph – that is paragraph 81 of the Goode decision – the Full Court went on to say, “However, the legislative pathway must be followed.” In other words, the relevant provisions of the Act, post the 2006 shared parenting amendments, must be followed in interim hearing.
30.There is considerable animosity, it would appear, between the parties in this case and, no doubt, the history of this matter will be the subject of evidence and cross-examination at the final hearing, if such is needed. I am also satisfied that, once the property matters have been resolved between the parties, they will be able to better deal with, and indeed, focus on, the ongoing parenting decisions for their two children.
31.There is no issue of equal shared parental responsibility to determine today. The dispute is simply limited to the issue of the children’s time with their father, and under what circumstances that time should be spent.
32.The Full Court, at paragraph 82 in the Goode decision, indicated that what this Court is initially required to do is identify the competing proposals; identify the issues in dispute; and identify any agreed or uncontested relevant facts, and I had previously noted those issues in this decision.
33.At this point I note section 60CA of the Act, which states:
“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.”
34.To determine the child’s best interests, the Court must consider the primary considerations or factors set out in section 60CC(2) of the Act, and the additional considerations in section 60CC(3) of the Act, where relevant. The Court will canvass these briefly now.
Primary considerations: s 60CC(2)
35.Under section 60CC(2)(a) the Court is required to consider:
“The benefit to the child of having a meaningful relationship with both of the child’s parents.”
36.At this point, let me note that “meaningful” does not mean equal, but clearly signifies that both parents should be involved with their children and, consequently, signifies an expectation of time to be spent. This right of the child to spend time with each parent and extended family is clearly a right enunciated in section 60B(2)(a) of the Act. Consequently, the Court will, in all likelihood, need to give some considerable weight to this factor in the final hearing, should such be needed.
37.Moreover, the Court is directed, under section 65DAA, in the absence of making an equal time order, to consider whether the children should spend substantial and significant time with the other parent that they do not live with. The Act requires that such an order can be made only if the Court is satisfied it is reasonably practicable and in the best interests of the children. This issue of reasonable practicality is not an issue in this case. The issue of best interests of the child is, however. At this point, the Court notes section 65DAA(3), which states:
“For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.”
38.Under section 60CC(2)(b) the Court is required to consider the need to protect the child, or the children as in this case, from physical or psychological harm, and from being subjected or exposed to abuse, neglect or family violence. There is no doubt that it would be in the children’s best interests to develop a meaningful relationship not just with their mother, but with their father. That needs to be balanced in respect of protecting the children from any physical or psychological harm and the like.
39.Given the nature of the allegations here, the Court is satisfied that there is a need to test the issues of whether the children have, in any way, been psychologically harmed following the breakdown of the relationship and, in this respect, the alleged mental health issues affecting both parents. There are issues here warranting investigation, and the Court needs to tread cautiously in the interim arrangements that will be necessary today.
40.In addition the possible harm to the children about being exposed to passive smoking and excessive alcohol consumption is a live issue in this case, and I will canvass that in a moment.
The additional considerations: s 60CC(3)
41.With respect to the additional considerations in section 60CC(3), I would firstly note that “any views expressed by the child”, while significant, would be difficult to determine in this case, given their very young years. Nevertheless, this is something that the family consultant will no doubt be able to assist the Court on, and perhaps with the assistance of the independent children’s lawyer, should such be facilitated.
42.As to the “nature of the relationship with the child and each of the child’s parents”, again, we have different stories here, and the parties’ evidence needs to be tested.
43.As to the “willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent”, that is a crucial factor here. The mother made a unilateral decision to withhold the children from their father, but, of course, there are, perhaps, considerations that may explain her actions. These issues need to be tested.
44.As to “the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent”, again, we have different stories here. These stories also need to be tested. But, having said that, there are issues of concern raised with the children being withheld by parents for whatever reason.
45.Also, the Court is required to consider “the likely effect of any changes in the child’s circumstances.” Clearly, there needs to be some change here. The present situation cannot continue. At some point, the father is going to have to establish suitable accommodation for himself and the children, should he wish to have the children live with him on a full-time basis.
46.In relation to “any other fact or circumstance that the court thinks is relevant”, there is, clearly, a live issue here, with respect to the children being potentially exposed to passive smoke, and possibly issues of excessive alcohol consumption that may impact upon their supervision. That having been said, they are both matters that suitable directions and undertakings can resolve.
47.The issue of the effects of passive smoking have been considered in a number of cases. The Court has certainly restrained parents from smoking in the presence of children, particularly where a child is asthmatic. For example, there is McCoy v Wessex (2007) 38 Fam LR 513, a decision of Brown J of the Family Court of Australia. At paragraph 158, she states:
“The mother expressed concern that the father smokes in the child’s presence. The child is asthmatic and I need no expert evidence to find that cigarette smoke is detrimental to an asthmatic child. Counsel for the father put that the father does not smoke inside. In those circumstances, I am satisfied an injunction restraining him from smoking in the child’s presence when inside or within a confined space will be in the child’s best interests and cannot prejudice the father.”
48.In a case called GBR v MSL in (2003) FMCA 614, Scarlett FM made the following order in relation to this matter before him:
“(15) The mother is to restrain from smoking any cigarette or other tobacco product in the presence of the child, D, or permitting any third party to do so.”
49.By way of contrast the Court notes the decision called PS v OS (2007) FMCAfam 285, a decision of Lucev FM, who stated, at paragraph 81:
“The Husband seeks an order that the Wife be restrained from smoking cigarettes in the presence of the Child or causing or permitting any other person to do so. There is no medical evidence of harm to this Child from exposure to persons (including the Wife) smoking cigarettes. There is a conflict in the evidence as to whether the Wife does smoke in the presence of the Child.”
50.At paragraph 82 his Honour stated:
“The proposed order is probably unenforceable. Without the benefit of clear evidence that this Child has suffered harm, and that there have been persons smoking in the Child’s presence, this is not an appropriate case in which to make the order sought. For all of these reasons there will be no non-smoking order.”
51.With that all having been said, the father in this case does not smoke, nor does his father (the paternal grandmother). The issue surrounds the paternal grandmother, who has indicated in her affidavit at paragraph 14:
“Ms Weir did not hesitate in contacting me to care for the children, and has regularly been to my home since she and Mr Ebberts separated. I have always been very conscious of not smoking around the children when they are visiting, and if I am going to smoke, I do so outside the house. Since Ms Weir has brought this application, I have informed Mr Ebberts that I will smoke outside the house at all times, whether or not the children are in the house, in order to ensure that the house remains smoke-free. I believe that Ms Weir is just trying to make things difficult for Mr Ebberts, and trying to control when and how he spends time with the children. I note that previously my smoking did not bother Ms Weir.”
52.It is relevant that the children have spent time with the paternal grandparents prior to this dispute arising, although the Court notes mother’s submission that she alleges that the smoking issue has been a long-standing dispute in her relationship with the father and the paternal grandmother. The concerns of excessive drinking by the paternal grandparents impacting upon the children seem to be contradicted by the fact that the children have been left in the paternal grandparents’ care in the past. In any event, the issue can be resolved today by appropriate restraints placed upon the father until further order.
Conclusion
53.The Court has reached the conclusion that the children should spend time with their father until further order. That should not come as a surprise to both parties, as both parties want this to happen. As to the circumstances, the Court has determined that there is no compelling evidence before it today that the children would be at any risk by them spending time with their father at the home of the paternal grandparents. It is clear that the children have spent time in that environment in the past. Apart from issues of the paternal grandmother smoking and the grandparents drinking alcohol, (which are perfectly legal pastimes in our society) there are no concerns about the children’s safety whilst in the care of the paternal grandparents.
54.There are counterclaims made by both parents about the mental health of each other, and both parties have agreed to psychiatric assessments. There is also some independent evidence before the Court today that both parties have been emotionally affected by the breakdown of the relationship. This is not a unique situation for parents to find themselves in following the breakdown of a relationship.
55.The father will be required to keep the children away from anyone, including the paternal grandmother, from smoking any cigarette or tobacco product in the presence of the children. This, in any event, has already been consented to in the Orders made on 8 July 2009.
56.The father will also be required to undertake not to drink alcohol or take any illicit substance 12 hours prior to the children coming into his care, or during the time that the children are spending time with him.
57.In addition to the consent Orders made at the Court on the previous occasion, the Court will order that the children spend two days, including one overnight, per week, by agreement between the parties, and, failing agreement, from 10 am Saturday until 5 pm Sunday, commencing on 18 July 2009, until further order.
58.Failing agreement to the contrary, changeovers will occur outside [C] police station.
59.The Court envisages that, pending receipt of the psychiatric assessments and family report, and assuming there is nothing in those assessments that raises any issue of concern to the Court, that the spend-time arrangements will most likely increase down the track.
60.The Court proposes to list the matter for a two-day final hearing as soon as possible, and I note the parties are arranging a family report on a private basis. I have ascertained from chambers that I now have a two day slot in late October available, due to another matter resolving, so, consequently, I will list the matter to that date.
61.I believe both parents will be assisted by participating in a post-separation parenting course, and I will make that Order today.
62.In addition, the parties will be required to use a communication book or substitute, to facilitate their parenting of the children.
63.I reserve the right to settle the reasons for this interim decision.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Monahan FM
Associate:
Date: 26 August 2009
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