McGrath v Dalgety
[2022] NZHC 2180
•30 August 2022
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV 2020-409-000601
[2022] NZHC 2180
UNDER The Status of Children Act 1969 AND THE
Declaratory Judgments Act 1908
IN THE MATTER OF
an Application for a Declaration of Paternity
BETWEEN
RYAN JAMES McGRATH
Plaintiff
AND
CRAN TERRY DALGETY and TIMOTHY
JOHN TWOMEY in their capacity as
Executors of JAMES SCOTT DALGETY Defendants
Hearing: 20 June 2022 Appearances:
M M Gray & E J Booth for the Plaintiff T J Twomey for the Defendants
Judgment:
30 August 2022
JUDGMENT OF VAN BOHEMEN J
This judgment was delivered by me on 30 August 2022 at 3.00pm Pursuant to Rule 11.5 of the High Court Rules
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
Tavendale and Partners, Christchurch Purnell Creighton, Christchurch
McGRATH v DALGETY [DALGETY & TWOMEY in their capacity as Executors of JAMES SCOTT DALGETY] [2022] NZHC 2180 [30 August 2022]
Introduction
[1] Ryan James McGrath (Ryan) applies under s 10 of the Status of Children Act 1969 for a declaration that James Scott Dalgety (Jim), was his father.
[2]Jim died after this proceeding commenced.
[3] Ryan’s application is supported by his mother, Katherine Anne Barrett (Kathy) Ryan’s sisters, Tara Anita Barrett (Tara) and Lisa Renee Barrett (Lisa), and Kathy’s friend, Cecilia Densham (Cecilia). All of these people have sworn or affirmed affidavits and were cross-examined on their affidavits at the hearing of Ryan’s application.
[4]Ryan’s application is opposed by the executors of Jim’ estate.
[5] The executors include Jim’s older son, Cran Dalgety (Cran), who was appointed Jim’s litigation guardian in the last months Jim was alive.
[6] Cran and his brother, Blair Dalgety (Blair), have sworn affidavits and were cross-examined on their affidavits at the hearing.
Unchallenged factual background
[7]Ryan was born at Burwood on 8 February 1986.
[8]Ryan’s birth certificate records Kathy as his mother.
[9]Ryan’s birth certificate records no information about his father.
[10]Ryan was raised by Kathy, together with his older sisters, Tara and Lisa.
[11]Ryan has not been adopted, formally or informally, by any other person.
[12]Jim died on 19 April 2022.
Ryan’s history according to Kathy, Tara, Lisa and Cecilia
[13] Kathy says she met her former husband, Pat Barrett (Pat), in the 1960s when they were both overseas. Tara was born in July 1969 while Kathy and Pat were still overseas. Lisa was born in March 1974 after Kathy and Pat had returned to New Zealand.
[14] Kathy got to know Jim through dealings in real estate that her father and Pat had with Jim and through encounters at the Addington Raceway, where Jim raced harness horses he trained. At the time, Jim was married to Faye and had two sons, Cran and Blair.
[15] Kathy and Pat separated in the late 1970s. Jim and Faye separated some time in 1980.
[16] In 1978, Kathy then began a relationship with Murray Wood (Murray) who worked at the White Heron hotel where Kathy also worked.1
[17] Kathy and Murray separated in mid-1981. Kathy says she chose to end the relationship. She says that Murray, who was eight years younger than her, and Murray’s parents wanted him to start a family of his own. Kathy did not want any more children because her two daughters were almost through their childhood years.
[18] After the separation, Murray continued to work in the same hotel as Kathy and to play a role in the lives of Tara and Lisa until he died during one of the Christchurch earthquakes.
Kathy and Jim get together; Kathy becomes pregnant
[19] Around March 1985, Kathy and Jim started dating and, after a time, began a sexual relationship. Kathy resumed taking birth control pills, although Jim told her it was unlikely he could father a child because of an injury he had suffered when training horses.
1 At various points in her affidavits and oral evidence, Ms McGrath also refers to the hotel as the Christchurch Airport Travelodge.
[20] In July 1985, Kathy felt unwell and consulted a doctor. Following tests, it was confirmed that Kathy was pregnant.
[21] Kathy informed Jim by telephone she was pregnant. Jim again told Kathy he did not think he could father a child. She told him he had; she had not been with anyone else since 1981. Jim told Kathy he would get back to her but did not.
[22] After about two weeks, Cecilia, who was a friend and work colleague of Kathy in whom Kathy had confided, called Jim. She told Jim that Kathy was upset and he needed to call her. Jim said he would call Kathy immediately.
[23] Whether after Cecilia’s call or otherwise, Jim did call Kathy. He reiterated that he did not think he could be the father. He asked Kathy to terminate the pregnancy.
[24] After considering Jim’s request and undergoing counselling, Kathy decided against terminating the pregnancy.
Development after Ryan’s birth
[25] Three weeks after Ryan’s birth on 5 February 1986, Kathy took Ryan to Jim’s house and asked Jim to sign the application for Ryan’s birth certificate recording that he was Ryan’s father. Jim refused.
[26] Kathy registered Ryan’s birth. She recorded Ryan’s surname as McGrath, her maiden name. She gave Ryan the middle name of James to record his father’s name in his name. She left the name of Ryan’s father blank. She refused to write “unknown” as suggested to her by the official recording Ryan’s birth.
[27] Ryan’s birth certificate states “Not Recorded” against all the entries for “Father/Matua.”
[28] Kathy did not apply for a declaration of paternity or seek an order for child support. She says she understood at the time that, if she sought an order for child support, she would have had to apply for a domestic purposes benefit and would have had to compel Jim to acknowledge his paternity. She did not have the resources to
take Jim to court or to seek legal advice. She believed she would be worse off financially if she went on the domestic purposes benefit than if she continued with her employment at the White Heron.
[29] When Ryan was about four-and-a-half years old, Kathy and her children moved to a house not far from where Jim lived. Jim started dropping in. Kathy encouraged these visits because she wanted Jim to develop a relationship with Ryan. Sometimes Jim brought a bale of hay for the girls’ horses.
[30] About a year later, Kathy and Jim resumed a casual sexual relationship which went on for quite a few years.
Ryan’s knowledge of his father
[31] When Ryan was about 11 years old, Ryan asked Kathy who his father was. Kathy says she responded by saying, “Jim Dalgety, the man who calls in sometimes.” She says Ryan’s reply was, “Oh, the dude with the hay.” She says she later told Jim of this exchange and had said she was not lying to Ryan. She says Jim’s reply was, “Fair enough.”
Jim’s financial support for Ryan
[32] When Ryan was 16 or 17, Kathy asked Jim for some money to put towards the purchase of Ryan’s first car. Jim gave Kathy a cheque for $1,000.
[33] When Ryan was 18 and about to go to France to play rugby for a French club, Kathy again asked Jim for money, this time to put towards Ryan’s airfare. Jim gave Kathy $2,000.
[34]These were the only occasions Kathy asked Jim for money.
Jim’s engagement as Ryan’s father
[35] Kathy says Jim behaved as if he was Ryan’s father when he came to her place and that her daughters and their partners, as well as Ryan’s partner, Kristyn, knew Jim as Ryan’s father. When Ryan came back from overseas, Kathy organised family
lunches or dinners to which Jim was invited. Ryan says that every time he came back from overseas, his mother arranged a dinner which Jim attended.
[36] Kathy says she would always tell Jim when Ryan was there, and she would arrange dinner. On a couple of occasions, they went to Jim’s because Jim was not driving.
[37] Ryan also says Jim treated him as if he were his son when he came to their home. He agrees, however, that Jim did not acknowledge him on one occasion when they met publicly.
[38] Kathy says she has always been open with close friends and family about the fact Jim is Ryan’s father. She did not make a secret of this, although she did not discuss it with those she considered did not have a right to know.
Jim tells Kathy he has provided for Ryan in his will
[39] In May 2007, when Ryan was 21, Jim came to Kathy’s house “all dressed up.” He told her he had been to his lawyer and had changed his will and had “put the lad in it.”
Kathy’s later interactions with Jim
[40] Kathy stayed friends with Jim as their lives progressed. She says she loved Jim for 35 years, was always fond of him and had no ill towards him.
[41] In 2017, Kathy learned Jim had suffered a stroke about two months after the event. She visited him at Burwood Hospital. She was not aware that his mental capacity had declined after the stroke.
[42] Kathy took Jim out one day to get his hair cut because he could not drive. Jim asked her to stop at her place on the way back. Over coffee, he said he did not know how he was going to get “this lad” some money. When Kathy said it was enough that he had put him in his will, Jim became confused and said he did not have a will.
[43] Kathy made enquiries to try to find out if Jim had not looked after Ryan as he had promised he would. She arranged for a letter to be sent from a lawyer to Jim. Kathy did not want Jim to be confused about the letter so went to visit him.
[44] Because Kathy had an injured knee, Cecilia took Kathy to see Jim. Cecilia did not read the letter but says she knew the letter was about Ryan and paternity. When they arrived at Jim’s property, Jim was outside. Cecilia says that when Jim saw them he said, “I’ve got the letter, I’m going to make sure the boy is looked after financially.” Cecilia did not hear the rest of the conversation between Kathy and Jim.
[45] In September 2020, solicitors acting for Jim responded to solicitors acting for Ryan and advised they had been instructed to deny that Jim was Ryan’s father.
Proceedings begin
[46] By statement of claim dated 3 December 2020, Ryan commenced this proceeding seeking a declaration that Jim is his father.
[47] In a report dated 11 May 2021, Dr Peter Wilkinson assessed Jim as having dementia and lacking capacity.
[48] On 21 June 2021, Cran was appointed Jim’s litigation guardian on the grounds of Jim’s mental impairment.
[49] By interlocutory application dated 5 July 2021, Ryan applied for parentage tests to be carried out on Jim and himself. That application was initially opposed on behalf of Jim but that opposition was withdrawn in October 2021.
[50] On 27 October 2021, Associate Judge Lester, by consent, made orders recommending that parentage tests be carried out on Ryan and Jim.
[51] In November 2021, Ryan and Kathy provided DNA samples to DNA Logistics Ltd.
[52]Jim did not provide a DNA sample.
[53]Jim died on 19 April 2022.
The evidence of Cran and Blair
[54] When Jim and Faye separated, Blair and Faye left what had been the family home. Cran continued to live with Jim until Cran left home about three years later. Jim never lived alone after he separated from Faye.
[55] Cran says Jim never brought any women home when he was living with Jim. Jim never mentioned he had a friendship with Kathy. Cran had never heard of Ryan until some time in 2020 when Cran’s lawyer was contacted by Ryan’s lawyer.
[56] Blair says he had never heard of Kathy or Ryan until told that a claim for paternity had been made.
[57] Jim denied to both Cran and Blair that he was Ryan’s father. Jim told them it was not possible for him to have fathered a child after he had suffered an injury to his testicles after being kicked by a horse and had one testicle removed.
[58] Cran and Blair say Jim became offended and agitated when asked to take a blood test to determine paternity. Jim had said there was no need for any blood test because he was not and could not be Ryan’s father.
[59] Cran says that, after he had been appointed litigation guardian, he could not and would not betray Jim’s trust by acting contrary to his wishes. This included placing a swab in his father’s mouth for the purposes of a parentage test.
Other evidence
[60] Dr Mohammed Imran Asif Ali, a Urology Fellow at St Vincent’ Hospital Sydney Hospital, has affirmed an affidavit stating that it is still possible to father children with one testicle as long as the testicle is healthy. Dr Ali was not cross- examined.
[61] No other medical evidence was called as to the effects a kick from a horse and the removal of a testicle might have on the ability to father children.
Evidence excluded from consideration
[62] The above summary excludes from consideration evidence about an Ancestry.com DNA test undertaken by Ryan and the findings of that test. I accept the submission of Mr Twomey, counsel for the Executors, that the evidence is hearsay. In addition, in the absence of evidence on the processes by which the test of Ryan’s DNA and related DNA tests were carried out, the Court cannot be satisfied as to the reliability and thus the relevance of those tests, having regard to s 7(2) of the Evidence Act 2006.2
[63] I have also excluded from consideration photographic evidence as to the asserted similarity in appearance of Jim and Ryan. I agree with the observation of Geoghegan DCJ in Mena v Kauraka that judges do not have the expertise required to draw inferences from such things and that it would be inappropriate to do so.3
[64] I have also not taken into consideration affidavits sworn by the partners of Ryan, Tara and Lisa. The partners were not cross-examined and they do not offer any independent information of the relationship between Jim and Ryan.
[65] I have not excluded hearsay statements in the accounts given by Ryan, Kathy, Cecilia, Cran and Blair. Most of those statements relate to what the deponents say was said to them by Jim, who is unavailable. The deponents were cross-examined. The statements assist in understanding the narrative of events. I am satisfied that the circumstances relating to the statements provide reasonable assurance that the statements are reliable. For these reasons, the statements are admissible in accordance with s 18 of the Evidence Act.
The law
Status of Children Act 1969
[66] Section 2A of Status of Children provides that the purpose of ss 3 and 4 of the Act is to remove the legal disabilities of children born out of wedlock.
2 Section 7(2) of the Evidence Act states: Evidence that is not relevant is not admissible in a proceeding.
3 Mena v Kauraka [2015] NZFC 9411 at [49(f)].
[67]Section 3(1) provides:
For all the purposes of the law of New Zealand the relationship between every person and his father and mother shall be determined irrespective of whether the father and mother are or have been married to each other, and all other relationships shall be determined accordingly.
[68] Under s 10(2), the High Court may make a declaration of paternity if an eligible person proves to the Court’s satisfaction that the relationship of father and child exists. That declaration can be made whether the alleged father or the alleged child or both of them are living or dead.
[69] Under s 10(1), an eligible person includes a person who alleges that the relationship of father and child exists between that person and another named person.
[70] Under s 10(5), the provisions of the Family Proceedings Act 1980, except ss 47 to 50, apply to an application under s 10 of the Status of Children Act as if it were an application for a paternity order under the Family Proceedings Act.
[71] Under s 10(6), every question of fact that arises in applying subs (2) must be decided on a balance of probabilities.
Family Proceedings Act 1980
[72] Under s 57(1) of the Family Proceedings Act, when the natural parentage of a child is in issue, and whether or not the Court has recommended that a parentage test be carried out on a person, evidence may be given as to the refusal of the person to consent to a parentage test.
[73] Under s 57(2), the Court may draw such inferences (if any) from the fact of refusal to consent to a parentage test as appear to it to be proper in the circumstances, subject to the right of the person who refuses to consent to explain the reasons for that refusal, and to cross-examine witnesses and call evidence.
Submissions of counsel for Jim
[74] Mr Twomey submits there is no evidence of a biological relationship between Jim and Ryan. He says there is also no evidence of a legal relationship. Kathy did not take any action under the Status of Children Act or the Family Proceedings Act to establish paternity. Jim did not at any time acknowledge or admit paternity other than in circumstances reported by others such as Cecilia, whose evidence, Mr Twomey submits, is based on hearsay, assumptions and unsubstantiated beliefs.
[75] For 35 years, Ryan showed no interest in obtaining a determination of parentage. He says Ryan’s primary concern is in obtaining a monetary settlement as evidenced by Kathy’s efforts to ensure Ryan was provided for in Jim’s will and the solicitor’s letter she arranged to be sent. He submits that the asserted knowledge of a father/son relationship between Jim and Ryan was solely within Kathy’s family and was unknown to the Dalgety family.
[76] Mr Twomey submits that evidence of Jim providing occasional bales of hay to Kathy, being a friendly neighbour and giving Ryan “pocket” money, and of Kathy providing meals to Jim is not evidence of paternity. He points that Ryan and Kathy have produced no photographs or correspondence in support of the alleged relationship.
[77] Mr Twomey submits there is a heightened need for caution in this case because of Ryan’s failure to commence proceedings for 35 years to establish a legal relationship with Jim. He says it speaks volumes that Ryan was not interested in obtaining a determination of paternity while Jim was mentally capable of opposing the application. He says the legal consequences of a determination are significant now that Jim is deceased and Ryan has signalled an intention to claim against Jim’s estate.
[78] Mr Twomey submits that the Court should not draw a negative inference on the grounds Jim consented to the Court order recommending that he undertake a parentage test. That order was made after Jim’s stroke and mental incapacity. He also says there was no evidential foundation for such an order until Kathy had provided her first affidavit dated 12 August 2021.
[79] Mr Twomey says that whether a negative inference is drawn should be considered alongside the evidence of Jim taking offence at being asked to undertake a blood test. He suggests Jim’s refusal may have been linked to his mental condition and says Jim was not capable of understanding the issues and ramifications of the Court’s recommendation. In these circumstances, the Court can properly decline to draw an inference from Jim’s refusal to undertake a paternity test.
Analysis
[80] There is no doubt that Ryan is an eligible person to apply under s 10 of the Status of Children Act.
[81] There is no time period within which an application under s 10 may be made. The Status of Children Act prescribes no time period. Because s 10(5) excludes the application of s 49 of the Family Proceedings Act, which provides a six-year limitation period for applying for a paternity order under that Act, the time-limitation in s 49 has no relevance.
[82] In addition, the imposition of any inferred or implied time frame for applying under the Status of Children Act would not be consistent with the essential purpose of the Act. As confirmed by the Supreme Court in Hemmes v Young, that purpose is to remove the legal disabilities of children born out of wedlock.4
[83] The only substantive issue before me, therefore, is whether I can be satisfied, on the balance of probabilities, that Jim is Ryan’s natural father.
[84] In Hemmes v Young, the Supreme Court held that s 10 is intended to establish the legal relationship of father and child and is not designed to be a vehicle for declaring biological relationships and biological facts.5 However, the Court also held that proof of the fact of a biological relationship of father and child will in most cases justify a declaration that the legal relationship of father and child exists.6
4 Hemmes v Young [2005] NZSC 47, [2006] 2 NZLR 1 at [9].
5 At [14].
6 At [16].
[85] In the present case, the essential question is whether Jim and Ryan had the legal relationship of father and child. However, most of the evidence was directed at whether Jim was Ryan’s biological father.
[86] I do not agree with Mr Twomey that there is no evidence of a biological relationship. There may not be any biological evidence such as the results of a DNA parentage test. There is, however, evidence of a relationship between Kathy and Jim from which inferences, including inferences of a biological relationship, can be drawn.
[87]As Whata J said in Re Boon:7
[15] In accordance with Hemmes v Young, the object of an enquiry under s10(2) of the [Status of Children Act] is not biological paternity, but rather a more holistic assessment of paternity. The absence of DNA evidence is not fatal to the application. …
[88] I agree with Mr Twomey that some caution must be exercised given the serious consequences that can follow a declaration of paternity. As Gendall J said in Re I:8
It is a serious matter because paternity is a matter of status affecting the heritage, lineage and possible inheritance rights of the plaintiff. Substantial financial consequences may arise.
[89]However, a declaration is at least as serious for the child as it is for the father.
[90]Moreover, as Gendall J also said:9
In the end the Court has to exercise its judgment in placing all matters of evidential value on the scales so as to come to a proper conclusion as to whether or not the essential facts and the conclusion as to paternity has been proven on the balance of probabilities.
[91] Kathy’s evidence is that, at the time Ryan was conceived around July 1985, she was involved in an exclusive sexual relationship with Jim and had not been involved sexually with another man since her relationship with Murray Wood ended in 1981. That evidence is not seriously contested. In particular, there is no evidence that Kathy was in fact involved with anyone else at the time. Mr Twomey’s
7 Re Boon [2017] NZHC 1509.
8 Re I (deceased) [1997] NZFLR 514 (HC) at 527.
9 At 527.
suggestions in cross-examination that Kathy may have continued her relationship with Murray because they continued to work together and because Lisa and Tara continued to regard Murray as a father figure were firmly rejected by Kathy. On this point, as with other aspects of Kathy’s evidence, I consider Kathy’s answers to be straightforward and credible.
[92] Nor is it seriously disputed that Jim was involved sexually with Kathy at the relevant time. Cecilia’s evidence is that she knew of the relationship at the time and was confided in by Kathy when Kathy became pregnant, and she took the initiative to call Jim and spoke to him about it.
[93] In addition, and whether or not Jim had acknowledged the relationship with Kathy earlier to Cran and Blair, their evidence is that, once Ryan’s application was made, Jim denied being the father because he was not capable of being the father. They do not say Jim denied having been in a relationship with Kathy. Their evidence is only that Jim said he could not have been the father because of the injury he had sustained to his groin previously and the consequent removal of one testicle.
[94] The fact that Jim sustained an injury to his groin is also not disputed. Kathy acknowledged that Jim told her of the injury and of his belief that he could not father a child on at least two occasions; first when their initial sexual relationship began and again after Kathy became pregnant.
[95]However, there is no medical evidence to support Jim’s belief.
[96] The evidence is that Jim sustained an injury to his groin from a horse kick and had a testicle removed. There is no evidence of any diagnosis at the time of the injury or subsequently to show the injury and the removal of one testicle made Jim infertile or otherwise affected the functioning of the remaining testicle. On the other hand, the evidence of Dr Ali is that it is possible to father a child if one testicle has been removed and the remaining testicle is healthy.
[97]In circumstances, therefore, where:
(a)It is not contested Jim and Kathy had a sexual relationship in mid-1985;
(b)Kathy has given straightforward and credible evidence that she was not involved sexually with another man in 1985 and that evidence is not seriously disputed;
(c)Ryan was born in February 1986; and
(d) It is physically possible for a man with one testicle to father a child, I am satisfied that it is reasonable to infer that Jim was Ryan’s father.
[98] That inference is supported by the fact Jim and Kathy resumed a sexual relationship after Ryan was born and continued their friendship for an even longer time, and Jim was a regular if not frequent guest at family dinners or lunches when Ryan was home. I accept that, individually, evidence of donations of occasional hay bales, two modest gifts of money and attendance at dinners does not establish a father– child relationship between Jim and Ryan. However, taken together and in combination with the considerations at [97] above, those pieces of evidence support the inference that Jim was Ryan’s father. In that regard, I consider such behaviour on Jim’s part would have been unlikely if he had not been the father, even if he may primarily have been interested in his relationship with Kathy.
[99] I draw no contrary inference from the fact that Kathy took no steps at the time of Ryan’s birth to obtain a paternity order under the Family Proceedings Act or to obtain a declaration of paternity under the Status of Children Act or to require Jim to contribute to Ryan’s upbringing. Even leaving aside the fact that such an inference would not be consistent with the purpose of the Status of Children Act, Kathy’s explanation of why she did not take such steps was credible and consistent with her circumstances at the time.
[100] On the other hand, in accordance with s 57(2) of the Family Proceedings Act, I do draw an adverse inference from the fact that Jim declined to undergo a parentage
test despite his legal representatives consenting on his behalf to an order recommending such a test.
[101] I accept that, by the time Associate Judge Lester made the consent order recommending the test, Jim had been found to lack capacity. However, the order was made with the consent of Jim’s legal guardian, Cran, who well knew Jim’s position on the asserted parentage of Ryan. Whatever Cran’s scruples about not betraying Jim’s trust by acting contrary to his wishes, he gave consent to the order on Jim’s behalf and, given that counsel had been instructed, presumably after receiving legal advice.
[102] It is also relevant that the refusal to undergo the parentage test was consistent with a pattern of behaviour of Jim refusing to take steps to acknowledge that he was Ryan’s father. Examples are:
(a)Jim’s initial reluctance to accept he was the father when Kathy told him she was pregnant;
(b)Jim’s refusal to have his name on Ryan’s birth certificate;
(c)Jim’s failure to follow through on his assurance to Kathy in 2007 that he had provided for Ryan in his will;
(d)Jim’s failure to follow through on his later assurance to Kathy in Cecilia’s presence that Ryan was going to be looked after financially; and
(e)The letter sent in September 2020 by Jim’s lawyers on his instructions denying that Jim was Ryan’s father.
[103] I do not accept, therefore, that Jim’s lack of personal capacity provides any sound reason for not drawing the inference available to me under s 57(2) of the Family Proceedings Act.
Result and Declaration
[104] For all these reasons, I am satisfied that Jim was the biological and legal father of Ryan.
[105] In accordance with s 10(2) of the Status of Children Act 1969, I make a declaration of paternity that James Scott Dalgety was the father of Ryan James McGrath.
Costs
[106]Ryan is entitled to costs on a 2B basis.
[107] If the parties are unable to agree costs, they may submit memoranda of no more than 4 pages.
[108] Any memorandum on behalf of Ryan should be submitted by 27 September 2022.
[109] Any memorandum on behalf of the executors should be submitted by 11 October 2022.
G J van Bohemen J
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