Wuopio & Adamikova
[2025] FedCFamC1A 111
•26 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Wuopio & Adamikova [2025] FedCFamC1A 111
Appeal from: Wuopio & Adamikova [2024] FedCFamC2F 1777 Appeal number: NAA 20 of 2025 File number: BRC 4321 of 2023 Judgment of: STRUM J Date of judgment: 26 June 2025 Catchwords: FAMILY LAW – APPEAL – Appeal against finding that no de facto relationship existed between the parties – Leave to appeal not required – Correctness test – Appellant asserts incompetence of counsel – Where appellant asserts failure to call a witness and to cross-examine another witness – Consideration of test in OP v TP & The Child Representative (Conduct of Counsel) (2002) 30 Fam LR 281 – Consideration of whether a more stringent test applies in financial matters than in parenting matters – Test not satisfied – Appeal dismissed – Costs order made against appellant in a fixed sum. Legislation: Evidence Act 1995 (Cth) s 128
Family Law Act 1975 (Cth) ss 4AA, 79A, 90RD and 90SM
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 3.10 and r 13.39
Cases cited: Clifton & Stuart (1990) 14 Fam LR 511
Colburn v Cleese (2022) 65 Fam LR 560; [2022] FedCFamC1A 147
Dakin & Dakin [2012] FamCAFC 120
Davila & Huffman [2024] FedCFamC1A 50
Gillies v Director of Public Prosecutions (NSW) [2008] NSWCCA 339
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635; [2023] HCA 32
House v The King (1936) 55 CLR 499; [1936] HCA 40
Maddax & Danner [2016] FamCAFC 176
Markusson & Markusson (No 3) [2024] FedCFamC1A 196
Nord & Van (2018) FLC 93-833; [2018] FamCAFC 75
Nudd v The Queen (2006) 225 ALR 161; [2006] HCA 9
OP v TP & The Child Representative (Conduct of Counsel) (2002) 30 Fam LR 281; [2002] FamCA 1155
Piovene & Muhlfeld [2025] FedCFamC1A 46
R v Birks (1990) 19 NSWLR 677
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Number of paragraphs: 93 Date of hearing: 23 May 2025 Place: Heard in Melbourne, delivered in Sydney The Appellant: Litigant in person Counsel for the Respondent: Ms Downes Solicitor for the Respondent: Chomley Family Law ORDERS
NAA 20 of 2025
BRC 4321 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR WUOPIO
Appellant
AND: MS ADAMIKOVA
Respondent
ORDER MADE BY:
STRUM J
DATE OF ORDER:
26 JUNE 2025
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondent’s costs, fixed in the sum of $10,000.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 the pseudonym Wuopio & Adamikova has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRUM J:
This is an appeal from an order made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 11 December 2024, dismissing an application for a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) (“Act”) that the appellant and the respondent were in a de facto relationship (“Order”).
The proceedings at first instance were commenced by the appellant by Initiating Application filed on 6 April 2023 seeking, by way of final relief, an alteration of interests in property pursuant to s 90SM of the Act, as well as interlocutory orders in relation thereto.
By her Response to Initiating Application filed on 12 May 2023, the respondent sought the dismissal of the Initiating Application and that “[t]he matter be listed for an Interim Hearing … to determine … [w]hether a de facto relationship existed between the parties”.
Notwithstanding the passage of one and a half years thereafter, the primary judge observed at [6]:
Curiously, there are no orders sought in the application for a declaration the parties were in a de facto relationship pursuant to s 90RD of the Act. I asked counsel appearing on behalf of the [appellant] about this at the beginning of the final hearing. He clarified that the [appellant] is seeking a declaration that a de facto relationship existed between 2006 and 2022.
Although, in her Response to Initiating Application, the respondent did not expressly seek a declaration pursuant to s 90RD that a de facto relationship never existed between the parties, in the minute of orders sought in her Outline of Case filed on 8 February 2024, she did so.
Accordingly, at first instance, there were competing applications between the parties for declaratory relief – oral on the part of the appellant, and in a minute of orders on the part of the respondent – albeit that neither of them had filed an amended application or response.
In the circumstances, the primary judge said at [2]:
These reasons relate only to my determination of the threshold issue of whether a de facto relationship existed between the parties.
The primary judge recorded at [9] that “[t]he parties largely agree[d] about the timeline of their relationship but disagree[d] about the nature of that relationship”. They shared accommodation between late 2005 and 2022. The appellant contended that, during this period, they were in a de facto relationship. The respondent conceded that, in late 2005, the appellant and she had a sexual relationship; however, she contended that it ended after about six weeks and that, otherwise, they were only housemates.
The primary judge correctly said that “[t]he question of whether the parties were in a de facto relationship is one of fact, not an exercise of discretion” (at [69]) and that it was “necessary for the Court to consider the ‘composite picture’ of the parties’ relationship and all of its facets in an effort to determine whether the parties were in a relationship as a couple living together on a genuine domestic basis” (at [70]).
Having regard to all the circumstances of the parties’ relationship, including the circumstances specified in s 4AA(2) of the Act; numerous “[i]ssues with the [appellant’s] evidence” in relation thereto (at [71]–[76]); and his counsel “[a]cknowledging the weakness of the evidence presented in support of his case” (at [106]), the primary judge concluded (at [115]–[116]):
115In the circumstances outlined above and where there is almost a complete lack of consistent evidence before me, I am not satisfied that the [appellant] has discharged the onus on him to prove a de facto relationship existed. Accordingly, I must find that no de facto relationship existed between the parties.
116Given this decision is largely based on the inadequacy of the [appellant’s] evidence, I am not minded to make a declaration that the parties were not in a de facto relationship. I am satisfied, however, that it is necessary to dismiss the [appellant’s] Initiating Application in its entirety.
Accordingly, the primary judge ordered that the appellant’s Initiating Application filed 6 April 2023 be dismissed.
LEAVE TO APPEAL
The appellant, in his Notice of Appeal filed 8 January 2025, seeks leave to appeal from the Order of the primary judge. In his Summary of Argument in support thereof, it “is accepted that the order of [the primary judge] was an interlocutory order and that an appeal does not lie to the Full Court except by leave” (at paragraph 3).
Although the appellant was self-represented at the hearing of the appeal, his Notice of Appeal was filed on his behalf by a firm of solicitors, and his Summary of Argument, signed by counsel, was filed by that firm. That firm and counsel were not those who acted on his behalf at first instance.
The respondent, in her Summary of Argument (at paragraph 4), submits that, as the Order dismissed the appellant’s Initiating Application, in its entirety, it was a final order, such that leave to appeal is not required. That is correct; the application for leave to appeal is both misconceived and otiose.
It is well settled that a declaration made pursuant to s 90RD of the Act does not require leave to appeal. In Nord & Van (2018) FLC 93-833, Kent J (with whom Alstergren DCJ and Murphy J agreed) stated (at 78,179–78,180):
7In Dahl & Hamblin (2011) FLC ¶93-480 the Full Court of this Court stated, without elaboration, in respect of an appeal against a declaration made pursuant to s 90RD of the Act that “[w]e do not consider that leave to appeal was necessary in this matter” (at [51]).
8Section 90RD(1) is expressed to operate where an application is made for an order under ss 90SE, 90SG or 90SM, or a declaration under s 90SL of the Act and a claim is made, in support of the application, that a de facto relationship existed between the applicant and another person.
9Section 90RE provides that a s 90RD declaration has effect as a judgment of the Court. Subsection (2) provides that for the purposes of the Act (other than Part VII) a s 90RD declaration has effect according to its terms.
10Whilst s 90RH provides for limited circumstances in which a s 90RD declaration may be varied or set aside, it does not seem to me that the existence of such a provision (analogous to s 79A with respect to final property settlement orders) renders the conclusion that a s 90RD declaration is interlocutory in nature.
11In my judgment once a s 90RD declaration is made it has the effect of finally determining rights of parties as regards the existence of a de facto relationship for the purposes of Part VIIIAB of the Act such that the order or judgment can be regarded as final in the sense described in the authorities (Licul v Corney (1976) 180 CLR 213; Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246).
12In my judgment leave to appeal is not required and the appeal proceeds as of right.
This was affirmed by the Full Court in Colburn v Cleese (2022) 65 Fam LR 560, where the plurality said (at 563–564):
13The appellant sought leave to appeal, but there is no need. The Full Court has held on numerous prior occasions that declarations made under s 90RD of the Act are final, not interlocutory, decrees and so leave is not required to appeal from such declarations (Nord & Van (2018) FLC 93-833 at [10]-[12]; Crick & Bennett (2018) FLC 93-832 at [88] and [93]; Cuan & Kostelac (2017) FLC 93-801 at [103]; Dahl & Hamblin (2011) FLC 93-480 at [51])..
14Such declarations finally determine the parties' rights about the existence and timing of their de facto relationship, since the declaration transforms the factual finding into a binding pronouncement which estops further controversy over the issue, thereby meeting the defining criteria of a “final” order in the traditional sense (Licul v Corney (1976) 180 CLR 213), even though the declarations do not finalise the broader litigious dispute between the former de facto partners over the division of their property interests.
15The Act expressly provides that declarations made under s 90RD take effect as a judgment of the Court (s 90RE(1)). The only purpose of a provision in those terms could be to place beyond doubt the finality of the declaration, making it a “judgment” which is amenable to appeal as of right (s 26(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)).
Having found that no de facto relationship between the parties existed and, therefore, dismissed the appellant’s Initiating Application in its entirety, implicitly for want of jurisdiction, I consider that, even though the primary judge did not make a declaration pursuant to s 90RD of the Act, the Order was a final order, from which leave to appeal is not required. Her Honour’s factual finding precluded any further controversy in relation to any alteration of interests in property pursuant to s 90SM of the Act, thereby meeting the defining criteria of a “final” order in the traditional sense. The Order, which dismissed the appellant’s Initiating Application for such an alteration of interests in property, had the effect of finally determining the rights of the parties in this regard.
Accordingly, I consider the Order to be final and that leave to appeal is not required. However, although the primary judge was “not satisfied that the [appellant] ha[d] discharged the onus on him to prove a de facto relationship existed” (at [115]), there remained the respondent’s application for a declaration pursuant to s 90RD of the Act that a de facto relationship never existed between them, in respect of which she bore the onus of proof. Notwithstanding that her Honour said (at [116]) that her decision was “largely based on the inadequacy of the [appellant’s] evidence” and that, therefore, she was “not minded to make a declaration that the parties were not in a de facto relationship”, I consider that as the declaration sought by the respondent was a corollary to her Honour’s factual finding, such a declaration should have been made. However, nothing of relevance flows from this in relation to the determination of this appeal.
GROUND OF APPEAL
The appellant’s Notice of Appeal contains a single ground of appeal, namely, that “[t]he incompetence of trial counsel for the appellant … led to a miscarriage of justice”. In the Summary of Argument filed on his behalf, the allegation is similarly confined only to counsel.
Insofar as it is submitted on behalf of the appellant, in his Summary of Argument (at paragraph 11), that the primary judge’s judgment was discretionary and that, therefore, the relevant standard of appellate review is that identified in House v The King (1936) 55 CLR 499, that is incorrect.
It is well settled that the issue of whether a de facto relationship existed, as defined in s 4AA of the Act, is a factual inquiry and, therefore, is not an exercise of discretion. This was recognised by the primary judge at [69]:
The question of whether the parties were in a de facto relationship is one of fact, not an exercise of discretion (Jonah & White (2012) FLC 93-522 at [39]; Sinclair & Whittaker (2013) FLC 93-551 at [65]). The onus is on the [appellant] to prove, on the balance of probabilities, that a de facto relationship existed (Evidence Act 1995 (Cth) s 140). On this point, in the matter of Cantu & Galloway [2023] FedCFamC1F 993 at [25], Austin J said the following:
The declaration as to the existence of a de facto relationship under s 90RD of the Act does not involve an exercise of judicial discretion (Jonah & White (2011) 45 Fam LR 460 at [39]). Rather, it is an evaluative factual determination, taking into account the criteria set out within s 4AA of the Act (Lennon & Sanil (2020) FLC 93-962 at [8]).
Accordingly, the applicable standard of appellate review is the “correctness standard” to which the High Court referred in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635 at [15]–[17]. In Piovene & Muhlfeld [2025] FedCFamC1A 46 at [20], the plurality of the Full Court said:
The judgment appealed from is not a discretionary judgment, but an evaluative factual determination, answering the question of whether a de facto relationship within s 4AA of the Act did, or did not, exist. There is only one correct answer to this question so that the “correctness standard” applies on appeal, meaning an appellate court determines for itself the correct outcome “while making due allowance for such ‘advantages’ as may have been enjoyed by the judge who conducted the trial or hearing” (Moore (a pseudonym) v The King (2024) 98 ALJR 1119 at [14]).
The appellant’s single ground of appeal, as drafted, is that the alleged incompetence of counsel who appeared on his behalf at the hearing at first instance led to a miscarriage of justice.
An assertion as to the incompetence of counsel is not, in and of itself, an independent ground of appeal; however, an appeal may be allowed if it can be demonstrated that the incompetence of counsel was such that the appellant was not afforded a fair trial or it produced a miscarriage of justice: Markusson & Markusson (No 3) [2024] FedCFamC1A 196 at [13], citing TKWJ v The Queen (2002) 212 CLR 124. However, I observe that, unlike the judgment of the primary judge, Markusson (No 3) was a parenting case and TKWJ v The Queen was a criminal case.
As to the principles relevant to the question of when an appellate court will allow an appeal on the basis of incompetence of a legal practitioner, in Markusson (No 3), Tree J referred at [14] to OP v TP & The Child Representative (Conduct of Counsel) (2002) 30 Fam LR 281, where the Full Court said at [123]–[124]:
123We think that it clearly emerges from the cases that we have cited that in criminal and child protection cases the incompetence of counsel can operate to constitute a miscarriage of justice in a number of ways. If the incompetence is of such a nature as to so affect the conduct of the trial that it ceases to be a fair trial then that, of itself, can require the ordering of a retrial, regardless of whether the result is apparently fair.
124On the other hand, from a procedural point of view the trial may appear to be regular, but incorrect or unjustified tactical decisions made by counsel may have had the effect of producing an unfair result. If this be the situation it is necessary for an appellant to establish, not only that the decisions were wrong or incompetent, but that their effect was likely to have brought about a different result if they had not been made.
In Maddax & Danner [2016] FamCAFC 176 at [69], the Full Court confirmed that, at least in a parenting case, the effect of OPv TP is that an appellant would need to establish that:
·counsel was incompetent or the forensic decisions were wrong;
·those decisions affected the judgment; and
·but for those matters, a different result would have been reached.
However, in OPv TP, the Full Court said at [121]:
In the present case we are exercising both the court's property jurisdiction and its jurisdiction in relation to children. We think that a clear distinction must be drawn between the two. We would class property cases as classic adversary cases where the results of a miscarriage of justice are not as serious from a community point of view as criminal cases or those involving children. …
The Full Court continued at [122]:
So far as the children's jurisdiction is concerned, the Full Court has pointed out in the past that this is not strictly an adversarial jurisdiction: see Separate Representative v JHE and GAW (1993) 114 FLR 1 ; 16 Fam LR 485 ; (1993) FLC 92–376 ; Hutchings v Clarke (1993) 113 ALR 709 ; 16 Fam LR 452 ; (1993) 92–373 ; Re Z (1996) 134 FLR 40 ; 20 Fam LR 651 ; (1996) FLC 92–694 ; T v S (2001) 28 Fam LR 342 ; (2001) FLC 93–086 . It is a jurisdiction in which the children's best interests are paramount. The children, though not parties, are the subjects of the litigation. In such circumstances we think that the principles to be applied to children's cases are different to property cases, and perhaps should be more liberal than in criminal cases in relation to this issue.
As to what constitutes requisite incompetence of a legal representative in parenting proceedings, the Full Court in OPv TP at [128] said:
We think it is the fact of the best interests principle that further distinguishes child related cases under the Family Law Act. Applying the above principles we think that there are two issues to be established. One is as to whether incompetence on the part of counsel has been established, and we would adopt the view taken by O'Connor J in Strickland, above, as the appropriate one in applying this test. The other is the issue of prejudice and we think that the appropriate test to be applied to the issue of prejudice is that adopted in DB's case, above, that is, but for the incompetence of counsel, is it reasonably probable that the result of the trial would have been different? There may, as was pointed out in DB's case, be cases where the procedural irregularities are such as to demonstrate a miscarriage of justice regardless of the result. In our view such cases would be less common and we do not regard this case as falling into that category.
Earlier in OPv TP, at [107]–[108], the Full Court cited two passages from the opinion of O’Connor J in the Supreme Court of the United States of America in Strickland v Washington 104 S Ct 2052 (1984). At 2068, her Honour said:
The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
At 2065, her Honour said:
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defence after it has proved unsuccessful, to conclude that a particular act or omission of counsel is unreasonable. (references omitted). A fair assessment of attorney performance, requires that every effort be made to eliminate the distorting affects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.
See also Davila & Huffman [2024] FedCFamC1A 50 at [10]–[15].
However, in OPv TP, the Full Court also said at [158] that:
… property proceedings stand in a different light to other proceedings relating to children, when considering claims of a miscarriage of justice brought about by the incompetence of counsel. We think that so far as the property proceedings are concerned, this is a classic situation where the appellant husband is bound by the conduct of the case by his counsel. In saying this we do not accept that there was necessarily anything wrong with counsel's conduct of his case in this regard.
As to allegations of incompetence of legal representation in property proceedings, the Full Court observed at [95] that most of the Australian decisions in this regard have related to proceedings under s 79A of the Act. The Full Court referred at [96]–[98] to Clifton & Stuart (1990) 14 Fam LR 511 and said at [99]:
It must be remembered that this was a decision relating to the meaning of a particular section of the Family Law Act and we think that the principles there stated should be confined to property proceedings in so far as they indicate that an unfair result is not an indicia of a miscarriage of justice.
In Clifton & Stuart, the Full Court held that the incompetence of a party's legal representation, unless equivalent to no representation at all or unless perverse, for example, if the legal representative was in league with the other side, does not by itself affect the judicial process or the fairness of the trial even though the result may be unjust to the party concerned. See at 517 and 520.
As the Full Court subsequently did in OPv TP, the Full Court in Clifton & Stuart said at 519 that –
… what amounts to a miscarriage of justice will in part depend on the jurisdiction invoked. In criminal trials the need to preserve the liberty of the citizen, and in past days his or her life, must clearly override to some extent the need to avoid further litigation. …
In Dakin & Dakin [2012] FamCAFC 120, the Full Court considered an allegation of incompetence of counsel in a property proceeding at first instance, albeit in the context of an application to adduce further evidence on appeal. The Full Court said at [45]:
At the commencement of oral argument, counsel for the husband submitted that the proceedings were conducted in such an incompetent manner by counsel for the husband at first instance that the ultimate result was infected by that incompetence. He contended that as the evidence now sought to be relied upon was all available at trial, it demonstrated the incompetence of counsel in not presenting the evidence or, alternatively, in not seeking an adjournment so that it could be presented. In each case, he submitted that the evidence, if accepted, would render the Federal Magistrate’s decision erroneous. Counsel conceded that effectively the success or failure of the appeal fell to be determined by the further evidence application.
Counsel for the appellant in that case submitted that the question of further evidence should be considered in light of the proceedings having been conducted in an incompetent manner and relied upon R v Birks (1990) 19 NSWLR 677 and Gillies v Director of Public Prosecutions (NSW) [2008] NSWCCA 339, again both criminal cases (at [76]–[77]).
The Full Court relevantly said in Dakin & Dakin at [81]–[83]:
81The question, therefore, is not whether the proceedings were conducted in such an incompetent manner so as to generate a miscarriage of justice, but rather whether the further evidence sought to be adduced, if accepted, would demonstrate that the order under appeal is erroneous. …
82Without therefore being required to determine the question of the incompetence of counsel, we observe that from a general consideration of the transcript and the way the matter proceeded, it would be difficult to infer that counsel was incompetent or, to fairly put it another way, that counsel was not acting on instructions. …
83What does appear from the transcript of the proceedings at trial is that while there were manifest deficiencies in the evidence, her Honour was aware of them and it is by no means clear that they could be attributed to counsel. Much of the evidence given by the husband was difficult to follow and lacking in particularity, as her Honour found. Two matters in particular suggest that the deficiencies in the evidence lay with the husband rather than his counsel.
Accordingly, it was not necessary for the Full Court to consider the test for incompetence.
Piovene & Muhlfeld, like this appeal, concerned an appeal from a declaration pursuant to s 90RD of the Act that a de facto relationship never existed as between the appellant and the respondent. One of the grounds of appeal asserted incompetence of counsel for the appellant at first instance, by reason of an asserted failure to tender certain documents. The plurality of the Full Court said at [39]–[40]:
39This is not competent as a separate ground of appeal (Markusson & Markusson (No 3) [2024] FedCFamC1A 196). But, at least in the context of a criminal trial, an appeal may be allowed if it can be demonstrated that the incompetence of counsel was such that the appellant was not afforded a fair trial or it produced a miscarriage of justice (TKWJ v R (2002) 212 CLR 124). It must be shown that decisions of counsel during the hearing were not only wrong or incompetent, but that their effect was such that they were likely to have brought about a result different to the likely result if they had not been made (OP v TP (Conduct of Counsel) (2002) 30 Fam LR 281 at [124]).
40As pointed out in relation to the Application in an Appeal, the appellant failed to sustain any argument that admission of the specified telecommunication records would have either shown the text messages were not authentic or could have led to any different result. Accordingly, there is no basis to conclude any incompetence has been demonstrated. Indeed, as the respondent submitted, the decision not to press evidence which could not sustain the asserted inferences, and would have wasted the Court’s time, was a mark of competence not incompetence.
The Full Court in Piovene & Muhlfeld did not refer to the test in Clifton & Stuart, in property proceedings, but, rather, the lower threshold in criminal (and, by extension, parenting) proceedings. It is not necessary, in the present case, to resolve this issue, nor do I consider it appropriate for me to do so, sitting as a single judge on appeal; that is a matter more appropriate for the Full Court. Even applying the test in Piovene & Muhlfeld, I do not consider there is any merit in the appeal, for the reasons that follow.
In the Summary of Argument filed on behalf of the appellant, it is submitted at paragraph 15 that there were two errors “which his Counsel perpetrated in the hearing before the primary judge”, namely, a failure to “call/arrange witnesses” and a failure to cross-examine a “critical witness”, namely, Ms B.
Further, it is submitted at paragraph 9 that there is “a clear deficiency in the evidence presented before the Court which supports the importance of challenging the evidence of [Ms B]”.
Failure to call/arrange witnesses
In this regard, the appellant (at paragraph 15 of his Summary of Argument) specifies two people, Mr C and Mr D, who were identified by him in cross-examination as mutual friends of the parties.
Although an affidavit of Mr C was filed on 16 September 2024, it was not relied upon at trial.
Shortly after the commencement of the hearing at first instance, there was the following exchange between the primary judge and counsel for the appellant:
HER HONOUR: Right. Okay. So are we – are you relying on an affidavit of a [Mr C]?
[COUNSEL FOR THE APPELLANT]: No, your Honour.
HER HONOUR: So I’m crossing that one out?
[COUNSEL FOR THE APPELLANT]: Correct, your Honour.
(Transcript 29 November 2024, p.5 lines 6–13)
The appellant submits (at paragraph 15 of his Summary of Argument) that the evidence Mr C “could have provided” in support of the existence of a de facto relationship, had his affidavit been relied upon, was:
-Known the parties for 8years [sic].
-He was aware that the appellant was in a relationship with the respondent.
-The respondent and appellant at some point shared a bedroom at his home.
-The appellant referred to the respondent as his wife. This may have assumed some importance when the appellant’s evidence was that he had asked the respondent to marry him.
-He provides evidence of observations [although brief] of the parties when he saw them out or visited their home.
-He provides evidence regarding conversation with the respondent regarding the return of a ring in the possession of the appellant.
(Emphasis removed) (Footnotes omitted)
No reason is apparent, on the transcript, as to why Mr C’s affidavit was not relied upon at trial. It is not axiomatic that it was a forensic decision made by counsel. It may be that Mr C was no longer prepared to be a witness; that he was not available on the day to be cross-examined; or that the appellant gave instructions that he no longer wished to rely upon Mr C’s affidavit. Further, the transcript, on its face, does not suggest that the appellant sought to correct his counsel, when he informed the primary judge that he did not seek to rely upon Mr C’s evidence.
The appellant was legally represented until shortly prior to the hearing of the appeal on 23 May 2025. On 16 May 2025, his former solicitors sought to file a Notice of Ceasing to Act. It was rejected for filing by reason of r 3.10(1)(a) and r 3.10(1A) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“Rules”) and, accordingly, it was only at the commencement of the hearing that they were granted leave to withdraw. Any application for leave to adduce further evidence at the hearing of the appeal, in relation to the matters canvassed in the preceding paragraph, was required by r 13.39 of the Rules to be filed at least 14 days prior thereto, namely, by 9 May 2025. At that time, the appellant remained legally represented. No such application was filed by that date or, indeed, at all.
In the circumstances, there is no basis to suggest that it was a forensic decision taken by counsel for the appellant not to rely upon the affidavit of Mr C.
Mr C’s affidavit is nevertheless contained in the Appeal Book. Omitting formal parts, it is comprised of only 10 short paragraphs, much of the contents of which are inadmissible or otherwise of little assistance, either to the appellant or to the primary judge. Accordingly, even if the primary judge were to have had regard to his evidence, it would not have materially affected the outcome of the case.
With regards to any possible evidence from Mr D, reference was apparently only made to him, for the first time in the proceedings, during cross-examination of the appellant and, even then, only very briefly, in response to a question by the respondent’s counsel about the parties’ mutual friends, as follows:
You had no mutual friends between you, do you?---Varied a lot, yes. [Mr C], [Mr E], [Mr D]. There’s - - -
Well, I will ask you about [Mr E]?---Mmm.
(Transcript 29 November 2024, p.12 lines 40–44).
The appellant, in his Summary of Argument, drawn by subsequent counsel of his behalf, in a footnote to paragraph 15, concedes that “an affidavit under the hand of [Mr D] was not referred to within the case of the appellant”. It is unclear whether this is a concession that there was no such affidavit at all.
The complaint by the appellant, in the Summary of Argument filed on his behalf, that his counsel at first instance failed to “call/arrange” Mr C as a witness is not suggestive of any incompetence. It misunderstands the role of counsel, as opposed to that of solicitors. Further, it may be suggestive of inadequate instructions by the appellant to his solicitors of persons who might be able to assist his case.
Insofar as the appellant submits that the evidence of Mr C was, and evidence of Mr D would have been, of importance, in the passage from his evidence in cross-examination set out at [53], above, in addition to them, he also referred to Mr E. An affidavit of Mr E was relied upon by him at trial and he was cross-examined. I observe that, at [104] of her reasons for judgment, the primary judge said:
[Mr E] gave evidence in support of the [appellant’s] position. Under cross-examination, he confirmed that much of what he understood about the parties’ relationship had come from discussions with the [appellant], save for him witnessing public displays of affection on one holiday in 2013.
Failure to cross-examine Ms B
Ms B’s affidavit, affirmed on 22 January 2024, is comprised of only four short paragraphs (omitting formal parts), as follows:
2.I have known [the respondent] for approximately eight years. We worked together at [an aged care facility] in [Town F] since 2015. We worked together or about 6 years there.
3.We became friends and I visited [the respondent] at her house in [Suburb G] on multiple occasions, spending the night on one occasion, sleeping in [the appellant’s] bedroom when he was away at work.
4.I was very aware, through speaking with [the respondent] and also from what I observed, that although [the respondent] and [the appellant] lived in the same house, they had separate lives and separate bedrooms and lived together as housemates only.
5.As long as I have known [the respondent], she has spoken about wanting to live alone but [the appellant] would not leave. [The respondent] confided in me one day that “I am so desperate to get him out, I’m thinking of selling my house, but I’m terrified of the consequences of what [the appellant] might do, but I just want him gone.”
Insofar as Ms B was not required for cross-examination, it is submitted by the appellant that her evidence corroborated significantly the evidence of the respondent. Accordingly it is further submitted that it was a “flawed Forensic [sic] decision made by the appellant’s Counsel”; that “there can be no logical basis for not cross-examining this witness in circumstances where the evidence directly contradicted the appellant’s case”; and, again, that “there is no logical basis upon which the decision of Counsel not to cross-examine such a critical witness can be reconciled with sound forensic decision making”, therefore leading to a miscarriage of justice (Summary of Argument at paragraphs 2 and 22).
There is no evidence as to why Ms B was not cross-examined. The respondent submits, I consider correctly, that “[i]t could have been a forensic decision, or it could have been on instruction which the Appellant now regrets” (Summary of Argument at paragraph 13(c)(i)).
In relation to a forensic decision taken by counsel at trial, namely, Gleeson J in TKWJ v The Queen said at [8] and [16]:
8On the face of it, that was an understandable decision. It was certainly not self-evidently unreasonable, or inexplicable. It was the kind of tactical decision routinely made by trial counsel, by which their clients are bound. And it was the kind of decision that a Court of Criminal Appeal would ordinarily have neither the duty nor the capacity to go behind. Decisions by trial counsel as to what evidence to call, or not to call, might later be regretted, but the wisdom of such decisions can rarely be the proper concern of appeal courts. It is only in exceptional cases that the adversarial system of justice will either require or permit counsel to explain decisions of that kind. A full explanation will normally involve revelation of matters that are confidential. A partial explanation will often be misleading. The appellate court will rarely be in as good a position as counsel to assess the relevant considerations. And, most importantly, the adversarial system proceeds upon the assumption that parties are bound by the conduct of their legal representatives.
…
16It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial. But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks. …
(Footnotes omitted)
The respondent submits (at paragraph 15 of her Summary of Argument) that a review of the transcript demonstrates that the appellant’s counsel at trial adequately advocated for his client on the material with which he was briefed. For example, he took objection during cross-examination of his client (Transcript 29 November 2024, p.15 lines 9–10); he sought a certificate pursuant to s 128 of the Evidence Act 1995 (Cth) when he was concerned that his client might incriminate himself (Transcript 29 November 2024, p.23 lines 14–15); he challenged the respondent’s evidence in cross-examination; and he made appropriate concessions in closing submissions. Although counsel for the appellant acknowledged “the weakness of the evidence presented in support of his client’s case”, nevertheless, he submitted that the “duration the parties lived together and the public intimacy reported by [Mr E]” suggested that the parties were in a de facto relationship (at [106] of the primary judge’s reasons). Accordingly, the respondent submits, and I agree, that all of these factors lend against a finding that the appellant’s representation was incompetent or so bad as to be the equivalent of no representation at all.
Further, as observed in relation to the affidavit of Mr C, which was not relied upon at trial, no reason is apparent, on the transcript, as to why Ms B was not required for cross-examination. It is not axiomatic that it was a forensic decision made by counsel. It may be that the appellant gave instructions to his counsel not to cross-examine her, even against advice.
There was the following exchange between the primary judge and counsel for the respondent:
HER HONOUR: Okay. All right. Okay. [Counsel for the respondent], your case outline. Are you relying on the – thank you – the affidavit of a [Ms B]?
[COUNSEL FOR THE RESPONDENT]: Yes. And that was dated 22 January 2024.
HER HONOUR: Okay.
[COUNSEL FOR THE RESPONDENT]: I understand she’s not required for cross-examination.
(Transcript 29 November 2024, p.5 lines 20–27)
Counsel for the appellant was not heard to suggest otherwise. Again, the transcript, on its face, does not suggest that the appellant sought to correct his counsel. Further, as with the affidavit of Mr C, there has been no application by the appellant for leave to adduce further evidence in this regard. In TKWJ v The Queen, unlike in the present case, affidavits were sworn by the solicitor and the barrister who had represented the appellant at the trial (at [5] of the primary judge’s reasons).
In her reasons for judgment, the primary judge said as follows:
53A former colleague and friend of the respondent, [Ms B], gave evidence by affidavit in support of the respondent’s case. She was available for cross-examination, but the [appellant] made the decision not to cross-examine her. Her evidence, therefore, remains unchallenged.
54[Ms B] deposes to working with the respondent for approximately six years from 2015 through 2021. She deposes to becoming friends with the respondent and visiting the [Suburb G] property on a number of occasions, including once spending the night. She deposes to staying in what she understood to be the [appellant’s] bedroom, as he was away working. She deposes to both being told by the respondent and observing that, despite the parties living together, they had separate lives and bedrooms, and lived as housemates only.
55At paragraph 5 of her affidavit, Ms [B] says the following:
As long as I have known [the respondent], she has spoken about wanting to live alone but that [the appellant] would not leave. [The respondent] confided in me one day that “I am so desperate to get him out, I’m thinking of selling my house, but I’m terrified of the consequences of what [the appellant] might do, but I just want him gone.
56As mentioned earlier, this evidence went unchallenged by the [appellant], despite [Ms B] being available for cross-examination.
Further, the primary judge said at [105] and [114], as follows:
105[Ms B] gave evidence in support of the respondent’s case in this respect, which went unchallenged by the [appellant]. In circumstances where I understand [Ms B] was available for cross-examination, I cannot understand why the [appellant] chose not to cross-examine the witness where it directly contradicts his case. In those circumstances, where [Ms B’s] evidence seems to corroborate the respondent’s assertions regarding the parties living separately, I am more inclined to consider that the parties’ lived separately, as contended by the respondent and her witness.
…
114Further, the evidence of the respondent’s witness was left unchallenged and untested, despite directly and specifically furthering the respondent’s case.
While it is evident from these passages that the primary judge did place weight on Ms B’s evidence, and noted several times that the evidence was unchallenged, Ms B’s evidence did not form the sole, or even primary, basis of her Honour’s decision.
Her Honour said at [70] that:
It is necessary for the Court to consider the “composite picture” of the parties’ relationship and all of its facets in an effort to determine whether the parties were in a relationship as a couple living together on a genuine domestic basis …
At [71]–[76], her Honour identified a number of “[i]ssues with the appellant’s evidence”, as follows:
71The [appellant] gave evidence, both in his material and during cross-examination that he was unable to produce any text messages and a great deal of photographs for any time prior to 2017 as he asserted the respondent had deleted data he had stored in iCloud from 2017 and before.
72He gave no particulars about the issue or how it arose until prompted in cross-examination, when he said that the iCloud account logged into his phone was managed by the respondent. Even still, in my view, his evidence in this respect was confusing and insufficient. He led no technical evidence nor any evidence about the technological issues he alleges, did not provide any particulars about how the situation arose or how the respondent was able to clear any of his personal data, and failed to adduce any evidence of attempts to recover his records.
73During submissions, counsel for the [appellant] told the Court that the photographs and records the [appellant] was able to produce had come from the period post-2017, his email account (which was unaffected by the iCloud issues), or from images and records he had stored on his computer.
74In addition to the alleged iCloud issues, the [appellant] told the Court that his physical records had been stored in a storage shed which was forfeited by the respondent. Again, the [appellant] failed to lead any evidence about this storage shed or how the circumstances around its forfeiture arose. He produced no evidence of any documents being stored in such a facility, of any communication regarding its forfeiture, or of him attempting to regain access or discuss the issue with the facility.
75Even when counsel for the [appellant] was asked to clarify the circumstances surrounding the above issues or prompted to provide further information, the Court was still not supplied with any satisfactory explanation or response.
76When the respondent was asked about these issues under cross-examination, she denied having any knowledge of either, and said she does not know what the [appellant] was referring to when he mentioned a forfeited storage shed.
Her Honour then embarked on a structured and detailed analysis of the evidence in relation to the relevant matters specified in s 4AA(2) of the Act (at [77]–[105]). In relation to the appellant, her Honour recorded, inter alia, the following:
·The appellant “led no specific evidence in relation to the parties’ sexual relationship” (at [81]).
·Counsel for the appellant conceded, during his submissions, that the parties’ property and finances were maintained quite separately (at [83]).
·Whilst the appellant provided some invoices and receipts for some works, equipment and hardware at one of the respondent’s properties (at [88]) –
… he has provided no evidence that it was actually him who funded the purchases, and it is difficult to determine which receipts relate to which contended improvements. The [appellant] has also failed to provide any evidence that the above works were actually undertaken or, if they were, that it was undertaken by him. His evidence in relation to each of the improvements he says he made to the [Suburb G] property is quite weak, particularly where they are also largely denied by the respondent.
·With regard to the degree of mutual commitment to a shared life, “[m]inimal evidence was led in relation to any commitment of the parties to living a shared life (at [98]).
·It was “agreed the respondent never met the [appellant’s] children from a previous relationship” (at [102]).
The evidence of Ms B appears only to have been relied upon by the primary judge in the context of her consideration of the “[c]onflicting evidence [that] has been led in relation to the public aspects of the parties’ relationship and their reputation as a couple” (at [103]) and her Honour’s finding that it “corroborate[d] the respondent’s assertions regarding the parties living separately”, such that her Honour was “more inclined to consider that the parties’ lived separately, as contended by the respondent and her witness” (at [105]).
Further, in this regard, her Honour referred to the evidence in cross-examination of Mr E, on behalf of the appellant, who “confirmed that much of what he understood about the parties’ relationship came from discussions with the [appellant]” (at [104]). In cross-examination, Mr E acknowledged that he had not observed the parties’ living arrangements in the respondent’s Suburb G property (Transcript 29 November 2024, p.26 line 44). Indeed, the appellant, in his trial affidavit filed 14 August 2024, provided no evidence that the parties had shared a bedroom.
The appellant, in his Summary of Argument (at paragraph 7), “concede[s] that the state of evidence at trial revealed the following”:
(a)The parties did not have any joint bank accounts.
(b)The evidence did not support that either party made the other a beneficiary of their respective will should that exist.
(c)There was no evidence of any party being listed as next of kin on any documentation.
(d)The parties were not listed as a spouse on either taxation documents
(e)The parties were not listed as a contact for medical information.
(f)There were no joint assets.
(g)limited financial documents that supported bills being paid on behalf of the other party.
(h)Phone records/text messages that support anything other than a casual relationship.
(i)No evidence that either party had introduced the other to their respective families or extended families.
(j)No evidence of direct payments or contributions to the renovations although that alone would not support a de-facto relationship.
(Footnotes omitted)
It is therefore apparent that, whilst the evidence of Ms B, upon which the primary judge relied, was unchallenged, it was but one factor in the case. Further, although Ms B’s evidence corroborated that of the respondent, it related only to the period from 2015 to 2022. Accordingly, her evidence left undisturbed that of the appellant as to the parties’ relationship between late 2005–2014. Therefore, it would still have been open to the primary judge to find that there was a de facto relationship in that earlier period, irrespective of Ms B’s evidence.
Further asserted deficiencies
At paragraph 9 of the appellant’s Summary of Argument, set out in tabular form, are the following other asserted “deficiencies” in the preparation or presentation of his case at trial, which it is submitted somehow support the importance of cross-examining Ms B:
Evidence Reference - Judgement No orders were initially sought in the application of the [appellant] for a declaration under s.90RD for a de-facto relationship existing. Paragraph [6] The [appellant] had a child support debt of approximately $200,000, but no evidence was produced. Paragraph [13] The contributions of the [appellant] to the property were not particularised with any precision. Paragraph [42]-[50] The respondent was not cross examined as to the alleged violence perpetrated by the [appellant]. Paragraph [51]-[52]; [100] – There may have been a plausible forensic decision about this, however, by not cross examining about this, the evidence remained unchallenged. (Footnotes omitted) (Emphasis removed)
As to the submission that the failure to seek a s 90RD declaration in the appellant’s Initiating Application is indicative of a poorly prepared case, that document discloses that it was prepared by solicitors other than those who later acted for him at trial, and not by counsel. There is nothing to suggest that the appellant’s counsel at trial was involved in the drafting of the Initiating Application. Although, subsequently, in the minute of orders sought in the appellant’s Outline of Case, which was settled by counsel who appeared for him at trial, a s 90RD declaration again was not sought, as recorded above, counsel rectified that deficiency in the initial stages of the trial, when raised by the primary judge. Further, how this supports the importance of cross-examining Ms B, as contended, is not at all apparent.
As to the absence of any evidence in relation to an alleged child support debt of the appellant, the only reference thereto in the primary judge’s reasons for judgment appears at [13]:
The [appellant] has three children from a previous relationship, although not from his previous marriage. It was agreed at the final hearing that the respondent has never met these children. The [appellant] deposes, and confirmed under cross-examination, that he has a child support debt of approximately $200,000 relating to these children. He has not produced any documents which substantiate this claim.
The relevance of the alleged child support debt is not at all apparent to the finding of the primary judge that no de facto relationship existed between the parties; to the evidence of Ms B; or to the asserted failure to cross-examine her.
Insofar as the appellant relies upon a failure to particularise, with precision, in his trial affidavit, his contributions to the appellant’s property, to which the primary judge referred in her reasons for judgment, that affidavit merely discloses that it was drawn by a lawyer. It is not suggested by the appellant that the lawyer who drew the affidavit was counsel who appeared for him at trial, or that the affidavit was settled by counsel. As similarly observed above, albeit in relation to the absence of any evidence from Mr D, if the affidavit was drawn by a solicitor at the law firm that filed it, the appellant’s complaint misunderstands the role of counsel, as opposed to that of solicitors.
Further, at paragraph 1 of the appellant’s Summary of Argument, it is properly conceded that he bore the onus of proving the existence of a de facto relationship. That included the onus to adduce evidence of all relevant matters in support of his case. In the absence of any application to adduce further evidence on appeal, it may be that respondent had no further evidence.
Again, how this supports the importance of cross-examining Ms B, as contended, is not at all apparent.
With respect to the absence of cross-examination of the respondent as to her allegations of domestic violence, it is conceded in the appellant’s Summary of Argument (at paragraph 9) that there “may have been a plausible forensic decision about this”. However, the submission immediately thereafter that, “by not cross examining about this, the evidence remained unchallenged”, ignores that concession. It may be that the appellant did not deny those allegations.
Further, the primary judge, at [51] and [99] of her reasons for judgment, referred to the respondent’s evidence of domestic violence, by way of explanation of why she never took any steps to evict the appellant, in response to the appellant’s argument that 17 years was a substantial length of time to live in the same house as someone, without being in a de facto relationship. In this regard, her Honour said at [100]:
… the respondent’s evidence in this respect related to a fear for the consequences of trying to evict the [appellant] given her assertions that the [appellant] was a violent man. Save for her word, no additional evidence is led in relation to his violence – whether that be photographs of injuries she sustained, doctors’ notes, police reports, or photographs of damage to property. She adds in her affidavit filed 18 January 2024 that she was concerned about making reports regarding the [appellant’s] violence as she said the [appellant] told her he would burn the house down if she did.
However, the primary judge did not make any findings in relation to, or rely upon, the allegations of domestic violence in her reasons for judgment. Accordingly, the fact that the respondent’s evidence was unchallenged was of little relevance to her Honour’s decision, or to this appeal. Further, yet again, how this supports the importance of cross-examining Ms B, as contended, is not at all apparent.
Other matters
I have referred above to the absence of any application by the appellant to adduce further evidence on appeal. The respondent, in her Summary of Argument (at paragraph 16), refers to claims made by the appellant in the course of cross-examination that he could “produce” documents or that they existed and could be obtained (see Transcript 29 November 2024, p.11 lines 40–46; p.16 lines 25–29; p.20 lines 19–33); however, in re-examination, no such documents were put to him or tendered. She submits that it is open to infer that no such documents existed. Accordingly, she submits that, similarly, the absence of any application to adduce further evidence suggests that no evidence in support of his claim of incompetence exists. There is no evidence that his counsel failed to follow his instructions or acted contrary to his instructions or of what otherwise took place between them. In particular, there is no evidence that Mr C was available and willing to give evidence or that the appellant instructed his counsel to cross-examine Ms B and that counsel acted contrary to any such instructions. In the circumstances, legal privilege could not apply, by reason of issue waiver, and therefore I infer no such evidence or, at least, no evidence which would assist the appellant’s case, exists.
The only indication given by the appellant at trial that might convey dissatisfaction with his counsel was the following statement by him, in cross-examination, in response to a question by the counsel for the respondent: “I wish I had of [sic] had you as my barrister because I would have that information” (Transcript 29 November 2024, p.16 lines 25–26). However, the transcript does not reveal, nor is there any further evidence on appeal, that the appellant considered or took any steps to terminate his counsel’s retainer. Similarly, and as already observed above, the transcript does not reveal that the appellant, at any time, raised any objection when his counsel informed the primary judge that there was no reliance upon the affidavit of Mr C, or when his counsel did not demur, when counsel for the respondent informed her Honour that he understood that Ms B was not required for cross-examination.
CONCLUSION
In the circumstances, if the applicable test in this case be that set out in OP v TP, I am not satisfied that counsel for the appellant at trial was incompetent, or that his forensic decisions were wrong. Even if that not be so, I am not satisfied that it affected the judgment of the primary judge and that, but for those matters, a different result would have been reached.
All the more so, I am not satisfied that there was any incompetence on the part of counsel for the appellant at trial such that his legal representation was equivalent to no representation at all, or perverse, so as to affect the judicial process or the fairness of the trial: Clifton & Stuart.
Rather, similar to that which Gummow and Hayne JJ said in Nudd v The Queen (2006) 225 ALR 161 at [162]:
… just as in medicine there may be terminal cases which not even the most brilliant surgeon can remedy, there will be prosecution cases which an accused could not successfully defend with the aid of the most resourceful and competent of counsel. …
Accordingly, the appeal will be dismissed.
COSTS
Counsel for the respondent advised the Court at the conclusion of the hearing of the appeal, that, if the appeal was unsuccessful, the respondent sought an order for costs.
The respondent filed a Schedule of Costs on 20 May 2025 in the sum of $15,654.63. Her counsel advised the Court that, whilst the costs there particularised were in accordance with the scale prescribed in the Rules, they were specified on a solicitor/client basis, rather than a party/party basis, and that the respondent was content for the Court, if minded to make an order, to fix the quantum.
As the appellant has been wholly unsuccessful, I consider that there are circumstances that justify the Court in making an order for costs, and I fix such costs in the sum of $10,000.
I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strum. Associate:
Dated: 26 June 2025
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