ATTRILL & LIPPMAN
[2015] FCCA 551
•20 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ATTRILL & LIPPMAN | [2015] FCCA 551 |
| Catchwords: FAMILY LAW – Three year old boy – what parenting arrangements are in child’s best interests – substantial agreement between parents. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 65AA, 60CC, 60B(1), 60B(2), 60B(3), 61DA(1), 61DA(2), 61DA(4), 65DAA(1), 65DAA(2), 65DAA(3), 61DA, 60CC(1)(2)(3), 60CC(2)(a), 60CC(2)(b), 60CC(3)(a), 60CC(3)(b)-(c), 60CC(3)(ca), 60CC(3)(d), 60CC(3)(i), 60CC(3)(j) and (k), 60CC(3)(1), 60CC(3)(m), 65DAC |
| Collu & Rinaldo [2010] FamCAFC 53 Tait & Densmore [2007] FamCA 1383 Champness & Hanson [2009] FamCAFC 96 |
| Applicant: | MR ATTRILL |
| Respondent: | MS LIPPMAN |
| File Number: | DGC 3572 of 2013 |
| Judgment of: | Judge Jones |
| Hearing dates: | 25 November 2014 & 10 February 2015 |
| Date of Last Submission: | 10 February 2015 |
| Delivered at: | Dandenong |
| Delivered on: | 20 March 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Moisidis |
| Solicitors for the Applicant: | Neesham White Gentle |
| Counsel for the Respondent: | Self Represented |
| Solicitors for the Respondent: | Self Represented |
ORDERS
The father and the mother have equal shared parental responsibility for the child X born (omitted) 2012 (“X”).
X live with the mother.
X spend time and communicate with the father as follows:
(a)From March 2015:
(i)Commencing 21 March 2015, each alternate weekend from 9.30am Saturday to 4.30pm Sunday;
(ii)Commencing 24 March 2015, from the conclusion of (omitted) School or 12.00pm each Tuesday until the commencement of (omitted) School or 9.00am on Wednesday;
(iii)Commencing 30 March 2015, each alternate Friday from the conclusion of (omitted) School or 12.00pm until 5.00pm, subject to the father being in attendance during this time spent. Where the father is unable to spend time with X in accordance with order (3)(a)(iii); he shall advise the mother by SMS text message no later than 7.00pm on the preceding Wednesday; and
(iv)Such other times as agreed between the parties.
(b)From January 2016:
(i)Commencing the second weekend of January 2016, each alternate weekend from 5.00pm Friday until 5.00pm Sunday;
(ii)From the conclusion of (omitted) School or 12.00pm each Tuesday until the commencement of (omitted) School or 9.00am on Wednesday;
(iii)During the weekend where the father is not spending time with X, on Friday from the conclusion of (omitted) School or 12.00pm until 5.00pm, subject to the father being in attendance during this time spent. Where the father is unable to spend time with X in accordance with order (3)(b)(iii); he shall advise the mother by SMS text message no later than 7.00pm on the preceding Wednesday;
(iv)During each week of the school term holidays from 10.00am on Monday until 5.00pm on Wednesday; and
(v)During the long summer holidays commencing in 2016/2017, from 26 December 2016, in each alternate week from 10.00am on Monday to 5.00pm on Thursday;
(vi)Such other times as agreed between the parties.
(c)From January 2017:
(i)Commencing the first weekend after the commencement of the school year in 2017, each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday or Tuesday if Monday is a non-school day or curriculum day;
(ii)From the conclusion of school each Wednesday until the commencement of school Thursday;
(iii)During the first half of the school term holidays from 10.00am on Monday until 5.00pm on Friday; and
(iv)During the long summer holidays commencing in 2017/2018, on a week about basis to be agreed and in the absence of agreement, the father’s time with X shall commence on the first day of the school holidays and then in each alternate week;
(v)Such other times as agreed between the parties.
(d)From January 2018:
(i)Commencing the first weekend after the commencement of the school year in 2018, each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday or Tuesday if Monday is a non-school day or curriculum day;
(ii)From the conclusion of school on each Wednesday until the commencement of school on Thursday;
(iii)For half of all school term holidays at times to be agreed and in the absence of agreement during the first half in even numbered years and the second half in odd numbered years;
(iv)For half of the long summer holidays at times to be agreed and in the absence of agreement during the first half in 2018/2019 and in each alternate year thereafter and the second half in 2019/2010 and in each alternate year thereafter;
(v)Such other times as agreed between the parties.
The father’s time with X be suspended as follows:
(a)The father’s time with X pursuant to order 3b(i), (ii) and (iii) be suspended during the school term holidays in 2016 and the long summer holidays commencing in 2016/2017;
(b)The father’s time with X pursuant to order 3(c)(i) and (ii) be suspended during the school term holidays in 2017 and during the long summer holidays commencing in 2017/2018;
(c)The father’s time with X pursuant to Order 3(d)(i) and (ii) be suspended during all school term holidays in 2017 and each year thereafter and during the long summer holidays commencing in 2018/2019 and each year thereafter;
Special Days
(a)Where the father’s time with X falls on Mother’s Day, the father’s time in order 3 shall be suspended from 5.00pm Mother’s day eve until 5.00pm Mother Day;
(b)Where the father’s time with X does not fall on Father’s Day, the father shall spend time with X from 5.00pm Father’s Day eve until 5.00 pm on Father’s Day
(a)Commencing 2015 and each alternative year thereafter, the mother shall spend time with X from 3.00pm Christmas Day to 3.00pm Boxing Day. Commencing 2015 and each alternative year thereafter, the father shall spend time with X from 3.00pm Christmas eve to 3.00pm on Christmas Day;
(b)Commencing 2016 and each alternate year thereafter, the father shall spend time with X from 3.00pm Christmas eve to 3.00pm Christmas Day. Commencing 2015 and each alternative year thereafter, the father shall spend time with X from 3.00pm Christmas Day to 3pm on Boxing Day.
(a)Where the father’s time with X falls on X’s birthday, the father’s time shall be suspended as agreed by the parties or, in the absence of agreement from 12 noon to 5.00pm;
(b)Where the father’s time with X does not fall on X’s birthday, the father shall spend time with X as agreed by the parties or, in the absence of agreement from 12noon to 5.00pm.
(a)Where the father’s time with X falls on the mother’s birthday, the father’s time shall be suspended as agreed or, in the absence of agreement, from after the end of kindergarten/school for a period of 4 hours during school term or otherwise from 2.00pm for a period of 4 hours;
(b)Where the father’s time with X does not fall on the father’s birthday, the father shall spend time with X as agreed or, in the absence of agreement, from after the end of kindergarten/school for a period of 4 hour during school term or otherwise from 2.00pm for a period of 4 hours.
On each of the special days, and such other times by agreement.
Illness, Communication, Information and Changeover
Either party will notify the other as soon as practicable if X suffers a serious illness or medical emergency and shall notify the other of the names of the treating medical professionals who are treating X and shall authorise such medical professionals to communicate with the other parent.
The father be permitted to obtain at his expense copies of all school notices, letters, reports, copy of photographs issued by X’s school and the father be permitted to attend all school activities where parents are usually invited to attend.
The mother and father provide each other with their respective current address, email address, landline and mobile phone numbers for the purposes of being able to communicate with each other about X.
Changeover that does not take place at X’s childcare /kindergarten/school shall take place with the father collecting X from the mother’s premises at the commencement of his time and the mother collecting X from the father’s premises at the conclusion of his time.
Each of the parties be restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other party and
(b)Discussing these proceedings or contents of any documents filed in or intended to be used in these proceedings
with or in the presence or hearing of X and from permitting any other person to do so.
IT IS NOTED that publication of this judgment under the pseudonym Attrill & Lippman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 3572 of 2013
| MR ATTRILL |
Applicant
And
| MS LIPPMAN |
Respondent
REASONS FOR JUDGMENT
Introduction
This decision concerns parenting arrangements in relation to a three-year-old boy, X (“X”) who was born on (omitted) 2012). His parents are Ms Lippman (“the mother”) who was born on (omitted) 1981 and Mr Attrill (“the father”) who was born on (omitted) 1983. Both parents work in the (omitted) industry, although the mother says she is now moving into more flexible employment to accommodate the needs of X.
The mother and father’s relationship was a short one. They disagree about when they commenced cohabitation, the mother says in September 2009 and the father says in May 2010. Both agree they separated in early October 2012.
It seems that in the initial post separation period, both parents were able to work out appropriate arrangements for X to spend time with his father. This cooperative parenting ceased following an incident on the evening of 17 February 2013 when X was in the father’s care. The mother entered the father’s home, uninvited, and removed X from the father’s care. I do not intend to traverse through the parents different versions of the events which occurred in the father’s house suffice to say the mother admitted to the Family Consultant, Ms D that, following this incident, she gave an undertaking at the Ringwood Magistrate’s Court on 16 April 2013 which expired in October 2013.
The father has re-partnered with Ms M and they live together. Having read the mother’s affidavit material and heard her submissions from time to time during these proceedings, I am satisfied that this relationship is a source of grief and anger for the mother. The mother says she has moved on from her relationship with the father, however, I am not entirely satisfied that this is the case. I am confident, however, that once the litigation has finalised the parties will be in a position to move on from the differences which only tend to get highlighted and exposed to unpleasant scrutiny during the course of litigation. It is most likely the parties will be able to put whatever grief and anger that arose out of the experiences during the relationship and in the aftermath of separation, behind them.
From February 2013, the relationship between the parents has been strained and consequently they were unable to agree on parenting arrangements. The father initiated proceedings in December 2013 seeking parenting orders.
Notwithstanding, the strained relationship and tension which exists between them, both parents, by the time of final hearing were able to agree on key aspects of parenting arrangements assisted by the preparation of a Family Report by Ms D dated 7 October 2014. The parents are to be congratulated on their capacity to adopt a child focused approach and to reach agreement on key issues which previously were in dispute.
The areas of agreement can be summarised as:
a)Equal shared parental responsibility for X;
b)X live with the mother;
c)X’s time with his father be regular and gradually and progressively increased including regular overnight time;
d)There should be arrangements for special days;
e)There should be the usual clauses for communication and information between the parents regarding contact numbers, addresses and information from X’s school, medical practitioners and particular arrangements in the case of medical emergencies as well as a non-denigration clause.
The areas of disagreement centre around when overnight time during the school week should commence, the extent of day time spent with the father during the school week and the rate at which block time during holidays should increase. The mother also seeks orders which she says are fundamental to the protection of X from harm. I will shortly deal with those areas of dispute.
Proposals of the Parties
The fathers proposed orders are:
1.The father and the mother have equal shared parental responsibility for the child X born (omitted) 2012 (“X”).
2.X live with the mother.
3.X spend time and communicate with the father as follows:
a)From January 2015:
i.Commencing 21 February 2015, each alternate weekend form 10.00am Saturday to 5.00pm Sunday;
ii.Commencing 17 February 2015, from the conclusion of (omitted) School or 12.00pm each Tuesday until the commencement of (omitted) School or 9.00am on Wednesday; and
iii.Commencing 13th February 2015, each alternate Friday from the conclusion of (omitted) School or 12.00pm until 5.00pm;
b)From January 2016:
i.Commencing the second weekend of January 2016, each alternate weekend from 5.00pm Friday until 5.00pm Sunday;
ii.From the conclusion of (omitted) School or 12.00pm each Tuesday until the commencement of (omitted) School or 9.00am on Wednesday;
iii.During the off weekend where the father is not spending time with X, from Friday from the conclusion of (omitted) School or 12.00pm until 5.00pm;
iv.During each week of the school term holidays from 10.00am on Monday until 5.00pm on Wednesday; and
v.During the long summer holidays commencing in 2016/2017, on a week about basis from 10.00am Monday until 5.00pm on Thursday during the week when the father spends time with X.
c) From January 2017:
i.Commencing the first weekend after the commencement of the school year in 2017, each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday or Tuesday if Monday is a non-school day or curriculum day;
ii.From the conclusion of school each Wednesday until the commencement of school Thursday;
iii.During the first half of the school term holidays from 10.00am on Monday until 5.00pm on Friday; and
iv.During the long summer holidays commencing in 2017/2018, on a week about basis.
d) From January 2018:
i.Commencing the first weekend after the commencement of the school year in 2018, each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday or Tuesday if Monday is a non-school day or curriculum day;
ii.From the conclusion of school on each Wednesday until the commencement of school on Thursday;
iii.For half of all school term holidays at times to be agreed and in default of agreement during the first half in even numbered years and the second half in odd numbered years;
iv.For half of the long summer holidays at times to be agreed and in default of agreement during the first half in 2018/2019 and in each alternate year thereafter and the second half in 2019/2010 and in each alternate year thereafter;
v.From 3.00pm Christmas Eve 2015 until 3.00pm on Christmas Day 2015 and each alternate year thereafter;
vi.From 3.00pm Christmas Day 2016 until 3.00pm Boxing Day 2016 and each alternate year thereafter;
vii.From 1.00pm until 5.00pm on X’s birthday if such birthday falls on a day when X is not in the care of the father;
viii.From 5.00pm Father’s Day eve until 5.00pm Father’s Day; and
ix.At such other times by agreement.
4.The father’s time with X be suspended as follows:
i)The father’s time with X pursuant to order 3B(i), (ii) and (iii) be suspended during the school term holidays in 2016 and the long summer holidays commencing in 2016/2017;
ii)The father’s time with X pursuant to order 3(c)(i) and (ii) be suspended during the school term holidays in 2017 and during the long summer holidays commencing in 2017/2018;
iii)The father’s time with X pursuant to Order 3(d)(i) and (ii) be suspended during all school term holidays in 2017 and each year thereafter and during the long summer holidays commencing in 2018/2019 and each year thereafter;
iv)From 3.00pm Christmas Day 2015 until 3.00pm on Boxing Day 2015 and each alternate year thereafter;
v)From 3.00pm Christmas Eve 2016 until 3.00pm on Christmas Day 2016 and each alternate year thereafter;
vi)From 1.00pm until 5.00pm on X’s birthday if such birthday falls on a day when X is spending time with the father; and
vii)From 5.00pm Mother’s Day eve until 5.00pm on Mother’s Day.
5.Either party will notify the other as soon as practicable if X suffers a serious illness or medical emergency and shall notify the other of the names of the treating medical professional who are treating X and shall authorise such medical professional to communicate with the other parent.
6.The father be permitted to obtain at his expense copies of all school notices, letters, reports, copy of photographs issued by X’s school and the father be permitted to attend all school activities where parents are usually invited to attend.
7.The mother and father provide each other with their respective current address, email address, landline and mobile phone numbers for the purposes of being able to communicate with each other about X.
8.Changeover that does not take place at X’s childcare/ kindergarten/school shall take place with the father collecting X from the mothers premises at the commencement of his time and the mother collecting X from the father’s premises at the conclusion of his time.
9.Each of the parties be restrained by injunction from:
viii)Abusing, insulting, belittling, rebuking or otherwise denigrating the other party and
ix)Discussing these proceedings or contents of any documents filed in or intended to be used in these proceedings
With or in the presence or hearing of X and from permitting any other person to do so.
The mother’s proposed parenting orders are:
1.All previous Orders be discharged.
2.X born (omitted) 2012 (the “child”) live with the mother, Ms Lippman (the “mother”).
3.The mother and father have equal shared parental responsibility for the care, welfare and development of the child of the relationship namely X born (omitted) 2012 (the child).
4.The child spends time with and communicates with the father, Mr Attrill (the “father”), as per the Family Consultant Report filed 8 October 2014:
4.1 From February 2015:
a)On alternate weekends from 10.00am Saturday to 4.00pm Sunday; and
b)Special Days as outlined specifically below.
4.2 From January 2016:
a)On alternate weekends from 5.00pm Friday to 4.00pm Sunday;
b)Time during school holiday periods in 3 day block periods (so that in a two week period there are 2 x3 day block periods);
c)Special Days as outlined specifically below.
4.3 From January 2017
a)On alternate weekends from 5.00pm Friday to the commencement of school Monday;
b)Time during school holidays in 4 day block periods; and
c)Special Days as outlined specifically below.
4.4 From January 2018
a)On alternate weekends from 5.00pm Saturday to the commencement of school Monday;
b)One week night each week (Wednesday night);
c)Time during school holiday periods in 5 day block periods; and
d)Special days as outlined specifically below.
4.5 At Christmas
a)In even years, from 3.00pm on Christmas day until 5.00pm on Boxing Day. The mother will have the child the night before and the night after.
b)In odd years, from 5.00pm on Christmas Eve until 12.00pm on Christmas Day. The mother will have the child the night before and the night of.
4.6If Easter Sunday is not a time that the child would otherwise spend with the father, then for a minimum period of four hours (between the hours of 9.00am to 4.00pm) on Easter Sunday.
4.7The child’s birthday will fall on school holiday period each year ((omitted)). If the day of the child’s birthday falls on a day that the child would not otherwise spend with the father, then a minimum period of four hours (between 8.00am and 5.00pm) on (omitted). If the child’s birthday falls on a day that is not already with the mother then a minimum of four hours and the night before be spend (sic) with the mother from 5.00pm the night before to 2.00pm on the day of (omitted). Other arrangements may be agreed by both parties.
4.8If the father’s birthday (omitted) is not a time that the child would otherwise spend with the father, then for a minimum period of two hours, if the birthday occurs on a school day and four hours if the birthday occurs on a non-school day, (time to be agreed between the parties), the child spends time with the father on 29 September of each year.
4.9If (omitted) (the mother’s birthday) is not a time that the child would otherwise spend with her, then for a minimum period of four hours, the child spends time with the mother on (omitted) of each year.
4.10If mother’s day (being the second Sunday in May of each year) is not time that the child would otherwise spend with the mother, then from 5.00pm on the Saturday before mother’s day until 5.00pm mother’s Day.
4.11At other times as agreed.
5.The mother will promptly notify the father should an emergency involving the child arise during such time as when the child spends time with the mother.
6.The father will promptly notify the mother should an emergency involving the child arise during such time as when the child spends time with the father. That until the child reaches the age of 6 years the father will promptly return the child to the mother should the child require substantial home care, as the result of the emergency.
7.The mother and father provided each other with their respective current address, email, address, landline and mobile phone numbers for the purpose of being able to communicate with each other about the child.
8.The mother and father restrict the child from attending any powerlifting or boxing training and competition an/or work until the child reaches the age of 8 years or otherwise both parents agree in writing.
9.In the event that either party is unable to care for the child during his respective periods pursuant to these orders, then the mother is to be given first option to care for the child.
10.Changeover take place at a neutral location at least 50 metres from their respective homes and no more than 2 kilometres.
11.Unless other agreed the father is to pick up the child at the commencement of the father’s time with the child and the mother picking up the child at the conclusion of the father’s time with the child.
12.Both parties pay equal for the child’s education and other additional activities.
13.Each of the parties, their servant and agents are hereby restrained by injunction from abusing, insulting, belittling, rebuking, or otherwise denigrating the other party and discussing these proceedings or the contents of any documents filed in or intended of use in these proceedings to, with or in the presence or hearing of the child (or any of them) and from permitting any other person to do so.
14.The father and the mother consult and make a genuine effort to come to a joint decision in the event that long-term issues arise in relation to the child in areas:
a) The child’s education; and
b) The child’s health.
Should refusal or rejection of change take place that both parties attend Relationships Australia’s Mediation Services (sic).
History of Proceedings
The father initiated proceedings by way of initiating application filed on 11 December 2013. The mother filed her response on 31 January 2014 seeking property orders as well.
On 12 February 2014, parenting orders were made by consent which provided that the father spend short periods of time during the day with X, twice during each week and during one day each weekend. The parties were also ordered to attend a Child Inclusive Conference on 7 April 2014.
On 23 June 2014, orders were made increasing X’s time with his father. Pursuant to these orders the father commenced spending overnight time each alternate Monday night until 1 September 2014, following which he would spend each Monday night with X. There was also provision for time spent each Thursday and then alternating Saturdays and Sundays in each week.
On 3 October 2014, the mother filed an Application In a Case which, so far as parenting orders were concerned, sought a restraint on X sleeping in any bed other than with his parents. This restraint was directed at X sleeping in the father’s bed which was shared with his partner. Order 1 of that Application in a Case was dismissed on 27 October 2014.
A copy of the Family Report by Ms D dated 7 October 2014 was released to the parties.
The final hearing of this matter commenced on 25 November 2014 and was adjourned part heard to 10 February 2015.
On 25 November 2014, parenting orders were made by consent for the father to spend time with X overnight each alternate weekend and during the daytime each Thursday. Additional overnight time on Monday night also commenced on 1 December 2014.
At the next and final Court return date, 10 February 2015, the mother informed the Court that she withdrew her application for property orders. The proceedings continued in relation to the parenting orders only.
Given the lapse of time between the November 2014 and February 2015 hearing dates, I asked the parties at the final hearing date to specify the parenting orders which they sought. As it appeared that the parties had achieved agreement on significant issues in relation to parenting orders, I enquired whether they wished to proceed with the testing of the mother’s evidence (the father having completed his evidence in November 2014) and the family consultant’s evidence (subject to appropriate notification) or to proceed by way of submissions. Both parties stated that they wished to proceed by way of submissions only. Given the nature of the issues in dispute, which in the scheme of things were narrow (although the differences are considered significant by each parent), I was satisfied that this would be an appropriate way of finalising the parenting dispute, having regard to the objects of the Federal Circuit Court Act 1999: s.3.
A consequence of proceeding in this way was that the mother was not cross-examined. As the father’s evidence had been completed in November 2014, the matters deposed by the mother in her affidavits were not put to him in cross-examination. A further consequence was that the Family Consultant was not cross-examined. However, both parties claimed that their proposed orders reflected Ms D’s recommendations (with slight variations).
Evidence and material considered
In the case of the father, I have read and considered each of the following documents:
a)His affidavits which depose to matters relevant to the parenting proceedings and filed on 11 December 2013, 14 January 2014 and 21 November 2014.
In the case of the mother, I have read and considered each of the following documents:
a)Her affidavits which depose to matters relevant to the parenting proceedings and filed on 31 January 2014, 3 October 2014, 24 November 2014, and 28 January 2015.
As I have earlier noted, because of the way in which the parties agree the final hearing should proceed, the father was cross-examined, however, the mother was not.
I have also read and considered the Child Inclusive Conference Memorandum prepared by Family Consultant Ms A dated 7 April 2014 and the Family Report prepared by Family Consultant Ms D dated 7 October 2014.
I have no doubt that the mother is a devoted mother who is very focused on ensuring that X has the best that she can offer him, that his life consists of stable and predictable patterns and that he is protected at all times from any harm that may arise from the environment in which he lives. She has enrolled him in (omitted) School and in 2015 he has commenced attending classes for three-year-olds. She says she has recently moved her residence to be close to the school so that she could walk to school with him every day during the week. She has also altered her working pattern to ensure that she can be with him when he is not at school. She says she can rely on the maternal grandmother and her sister and that X has a wonderful extended family on her side. The Family Consultant Ms D observed that the mother “impressed as a resourceful mother” “patient and attentive” to X.[1]
[1] Family Report at [54]
While the father has stated to both Family Consultants that he believes the mother is an excellent mother for X, throughout the proceedings the mother has not said anything positive about the father’s parenting capacity or his role model as a father for X. And in her own material, has stated that father and son do not have a particular bond (see Affidavit filed 31 January 2014 by Ms Lippman at [14]) In fact, she has made it clear to the Family Consultants and this Court that she simply does not trust the father with respect to his capacity to care for X and provide him with a safe and secure environment when X is in his care. This is despite the fact that she has repeated on numerous occasions that she is committed to ensuring a meaningful relationship between X and his father.
At [67] of her Report Ms D said:
“The writer assessed that both Ms Lippman and Mr Attrill are good parents with more than adequate parenting skills to care for X and promote his confidence and learning. Both parents were attentive, encouraging and interacted warmly and easily with X. X appeared happy and settled in the company of both parents and displayed an emotionally connected relationship with each of them. He was observed to transition easily from one parent to the other on the day of the appointment”.
It was plain in the proceedings that the mother remains mistrustful of the father’s parenting capacity. In my opinion, using the incident regarding whether to wake or leave X sleeping with a soiled nappy, as an example of poor parenting capacity is simply absurd. Another example is her allegation that X was returned to her care with a fever (leading then to a respiratory infection requiring medical attention). It may be that the father did not act quickly. However, it may also be that, X, like all young children, developed a temperature very suddenly. The point is that the mother is unable to examine the circumstances from the view point of a variety of circumstances. Her first reaction is from a negative, hyper vigilant perspective.
The mother’s affidavits filed 3 October 2014 and 28 January 2015 set out a series of complaints about the father and complaints that X’s anxiety and demeanour has changed since overnight stays have been introduced. She deposes to X having serious separation anxiety as a consequence. Of course the father was not in a position to respond to these allegations. I note, however, the mother’s proposed orders allow for a continuation of overnight stay at weekends. I should observe here that the mother should be vigilant that X is not being exposed to her high levels of anxiety manifested in these proceedings about X being in the father’s care.
Both Family Consultants observed a level of anxiety by the mother in her presentation and a determination by her that X adhere to his routine and an inability to consider the possibility that X might benefit from time with his father, even if those routines were disturbed.
The mother’s presentation to the Court was often highly anxious when dealing with what she believed might be the exposure of X to parenting arrangements she opposed or which might leave him exposed to an environment she believed was not safe.
The mother also demonstrated resistance to considering any parenting arrangement which might disturb routines she wanted maintained for X, irrespective of the benefit X may gain from time spent with the father. For example, with respect to the father’s proposal for overnight care during the week she deposes, “Because of the constant disruption in his routine he has missed school and other school term activities and I have consequently missed substantial work. I feel any extension to overnights could create potential separation anxiety and emotional developmental hold backs.”[2] The mother did not particularise precisely what it is said X has missed. It needs to be borne in mind that X is only a three year old. Granted (omitted) School may be a special school but the anxiety that he is missing school and will suffer developmentally by reason of parenting arrangements which allow him to have substantial and significant time with his father seems completely misplaced. X, according to the Family Consultant impresses as “an intelligent child who displayed advanced verbal skill.”
[2] Mother’s Affidavit filed 3 October 2014 at [16].
In the proceedings the mother’s opposition to time spent overnight with his father during the week in 2015, 2016 and 2017 appeared to be primarily due to her desire that X be walked every day to his (omitted) School from her home and not by car with his father. She also argued that the time X would be travelling in the car with his father would be excessive. She seemed unable to accept that X may well benefit from time with his father. From her perspective the adherence to routines surpassed any benefit X may have with his father. Obviously routine is important for children, however, there must be a balance. Moreover, once X commences time with his father in accordance with orders, this will become part of his routine. I am not satisfied that the 30 to 40 minutes of travel between the parents homes or between (omitted) School is excessive.
It seems to me that a substantial reason for the mother’s anxiety and mistrust of the father’s parenting capacity rests with her anger and likely grief regarding the circumstances under which the parent’s relationship ended and the fact that the father has re-partnered (apparently relatively quickly) and lives with Ms M. For example, during submissions the mother expressed concerns that the father would not necessarily spend the time with X that was made available to him pursuant to any parenting orders. She speculated that there could be “substantial time” that the father is away during the evening or the day and, consequently X would be in someone else’s care, including Ms M. The mother prevaricated somewhat, when asked what the basis was for her assertion that there could be substantial times during which the father was not present to care. Ultimately, she stated that the basis was the fact there has been a lot of deceit over where he is and who the father has been with.
I am satisfied that the mother’s anxieties and concerns are likely exaggerated and do not reflect the reality regarding the fathers capacity as a parent. I say this because the concerns she expressed tend to be generalised without substantiation or have focused on a small number of incidents, which in the scheme of things, are part and parcel of the growth and development of young children.
APPLICABLE LAW
The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s.60B of the Act.
In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration (s.60CA and s.65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests. In Collu & Rinaldo [2010] FamCAFC 53, the Full Court held that a Court’s task, informed by the objects expressed in s.60B(1) and the principles underlying those objects in s.60B(2) (and where relevant s.60B(3)), is to undertake consideration of and make findings about each of the “best interests” considerations set out in s.60CC having regard to the parties’ respective proposals.
Section 61DA(1) of the Act provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. This presumption does not apply if there are reasonable grounds to believe that a parent of the child (or person that lives with the parent or child) has engaged in abuse of the child or another child who was a member of the parent’s family or family violence: s.61DA(2). Moreover, the presumption may be rebutted by evidence which satisfies the Court that it would not be in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child: s.61DA(4). It is to be noted that where the presumption does not apply, in circumstances where the Court has reasonable ground to suspect abuse of the child or family violence has occurred, the Court nonetheless retains the discretion to order equal shared parental responsibility.
Where a parenting order provides that the parents are to have equal shared parental responsibility for the child, the Court must first consider whether it is in the best interest of the child and is reasonably practicable for the child to spend equal time with both parents and, if so, whether an order for equal time should be made: s.65DAA(1). Where the Court decides that it should not make an order for each parent to spend equal time with the child, it must then consider whether it is in the best interest of the child and is reasonably practicable for the child to spend substantial and significant time with each parent and, if so, whether an order for substantial and significant time should be made: s.65DAA(2). The meaning of substantial and significant time is set out in s.65DAA(3).
Before considering s.61DA and the legal pathway mandated where the presumption of equal shared parental responsibility applies, it is appropriate to consider s.60CC, s.60CC(1) provides that in determining what is in the best interests of a child the Court must consider the matters set out in subsections (2) and (3). S.60CC(2)(a) specifies what are described as the primary considerations and s.60CC(3) sets out what are described as additional considerations.
S.60CC – Best Interests of the Children
Primary considerations
Section 60CC(2)(a) – benefit to the child of having a meaningful relationship with both of the child’s parents
I am satisfied that X has a meaningful relationship with both of his parents. The mother has obviously been the primary attachment figure and their close bond is evident from the Family Report of Ms D.
With respect to the relationship between father and son, Ms D reported as follows at [56]:
“When his father arrived the writer asked Ms Lippman to accompany the writer with X and hand over to his father. X appeared delighted to see his father. He had a big smile on his face and he readily approached his father. The writer observed a natural ease and warmth in the interactions between X and his father. They shared verbal and physical affection with ease and X interacted easily with his father.”
The mother submits that this observation was made by the Family Consultant before the introduction of overnight time with his father. The mother seems to be suggesting, although she did not go so far as to state this, that X would not have presented as a happy contented child during the observation with his father because of the impact of overnight time. I must say I doubt whether the experience of overnight time (as the mother has related it) would have changed the content of the Family Consultant’s observations of X with his father at all. This is because the mother’s complaints appear to be in relation to X settling down with her after changeover, not about his warm and comfortable relationship with his father.
The enquiry in relation to s.60CC(2)(a) is a prospective one requiring the Court to :
“…evaluate the extent to which a meaningful or significant relationship with both of his parents is going to be beneficial and of advantage to B into the future.”: G & C [2006] FamCA 994 at [72]
I am satisfied that a meaningful or significant relationship with both of the children’s parents is going to be beneficial and of advantage to X into the future.
The concept of “meaningful” was expanded on by Cronin J in Tait & Densmore [2007] FamCA 1383:
“To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child. Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate with others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship. The responsibilities of parents are to give the children a chance to be part of a family albeit in two households where they can have a feeling of being wanted and appreciated.”
The observations made by his Honour Cronin J seem particularly apt in this case for the reason that, I have formed the view, that the quality of X’s relationship with his father may well be very much affected in the long term by the trust which each parent extends to the other in relation to the day-to-day care and welfare of the child. The concept of equal shared parental responsibility is one which applies to long term issues affecting the child. Both parents in this case need to be very mindful that X’s emotional and intellectual development will be adversely affected if the parties are unable to respect the parenting styles and capacity of the other. From the mother’s point of view she will need to take steps to deal with her hypervigilance, anxiety and mistrust of the father when X is in his care. From the father’s point of view, particularly whilst X is still young, he will need to ensure that he take steps to communicate with the mother on matters that are relevant to X’ day-to-day care. For example, his last meal or nap.
Whilst the Court must consider the best interests of the child of having a meaningful relationship with each parent, this benefit must be weighed against all other factors, in determining orders which have the children’s best interests as the paramount consideration: Champness & Hanson [2009] FamCAFC 96 at [103].
Section 60CC(2)(b) – the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence
I have considered carefully the concerns the mother has expressed in relation to the father’s capacity to care for and to protect X whilst X is in his care.
If it was the mother’s submission that the father is unable to protect X from physical or psychological harm then I reject that. I accept the opinion of the Family Consultant Ms D that X is well able to be cared for in both the parent’s households.
I have formed the view that the matters raised by the mother regarding X behaviour and contentment, following overnight care reflect an excessive hyper vigilance. I am satisfied that over time X will settle in his routine, provided of course, both parents refrain from exposing him to their conflict and anxieties.
Additional considerations
I do not propose to address every matter that is specified in s.60CC(2)(b) as an additional consideration, rather, only those that are relevant to the particular issues in dispute between the parties. Given the compass of the dispute is relatively narrow, the additional considerations that appear to me to be relevant are likewise limited in number.
X is, or course far too young to express his views and hence this factor is not relevant: s.60CC(3)(a).
I am satisfied that X has a positive and close relationship with each of his parents. His relationship with his mother is established and his bond with his father will no doubt have flourished under the interim parenting orders. I am satisfied that the father has taken all opportunities available to him to spend time and communicate with X. It appears that the only decision about long term issues which has been taken is the child’s attendance at (omitted) School. I gained the impression that this was a unilateral decision made by the mother. She will need, in the future, to be mindful of the obligations on her which flow from equal shared parenting responsibility (see below): s.60CC(3)(b) – (c).
It is clear that the mother carries the burden of maintaining X as she is the primary care giver. The father pays the mother $80.00 a month, this being the present assessment by the Child Support Registrar. The mother wants the father to share in the costs of X attending (omitted) school which are very high for such a young child. The father says he can’t afford to at present. The mother says she struggles to meet the costs. The decision regarding X attending this school was the mother’s. This is a decision which would have benefited from genuine consultation between the parents including the issues of costs: s.60CC(3)(ca).
The likely effect of any change in X’s circumstances (s.60CC(3)(d)) is relevant given his young age. It is apparent, from the history of these proceedings that the time the father has spent with X has, in an age appropriate way, gradually increased since February 2014 from regular daytime care to the inclusion of overnight time. The time X spends with his father during the day and overnight has also gradually increased. Since December 2014, the father has spent time with X each alternate weekend from 10.00am Saturday to 5.00pm Sunday, each Thursday from 10.00am to 5.00pm and in each week, overnight from Monday 10.00am to Tuesday 10.00am.
Under the mother’s proposal X’s overnight time with his father during the week would be reduced during the week until 2018. Under the father’s proposal, X would spend additional day time with him during each alternate Friday.
X has commenced attending the (omitted) School. It seems he is attending the kindergarten program which for the years 2015 to 2016 involve a 5 day week from either 8.30am or 9.00am to 12.00pm. In 2017, he will commence school. Consequently, any parenting orders will need to take into account these developments.
As I have noted earlier, the capacity of the father to provide for the emotional and intellectual needs of X have been grounds for persistent criticism by the mother. I am satisfied that these needs are well able to be satisfied by both parents in each household: s.60CC(3)(f).
I am satisfied that both parents have demonstrated a commitment to the responsibilities of parenthood. The issue in this case is not their attitude to their child but to each other:s.60CC(3)(i).
The mother alleges family violence by the father which he denies. The only undisputed evidence is that in early April 2013 the mother gave undertakings in respect of an application for protective orders. This is not in my view a factor which I should give any weight to: s.60CC(3)(j) and (k).
The nature of family law orders is that they are prospective and therefore subject to changes in circumstances of the children or either of the parents and the usual vicissitudes of life.
It is no doubt preferable for the Court to make orders that are least likely to lead to the institution of further proceedings in relation to the children: s.60CC(3)(l).
In considering the proposals of the parties against the matters specified in s.60CC, the issues which have arisen and which impact on the making of orders which are least likely to result in further litigation are the desirability of framing orders which will:
a)reduce the level of conflict between the parents; and
b)ensuring, to the extent possible, that the child resides in households that provide him with the level of emotional stability and security which he is entitled to.
There are no other facts or circumstances which the Court believes are relevant: s.60CC(3)(m).
S.61DA and S.65DAA
Both parties agree that the orders should provide for equal shared parenting responsibility. I am satisfied that this presumption should apply. It is appropriate to set out the obligations that flow from this,
s.65DAC provides:
Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
I am now required to consider firstly whether it is in the best interest of the child and is reasonably practicable for the child to spend equal time with both parents and, if so, whether an order for equal time should be made: s.65DAA(1).
Having found that an equal time arrangement should not be made I am now required to consider whether it is in the best interest of the child and is reasonably practicable for the child to spend substantial and significant time with each parent and, if so, whether an order for substantial and significant time should be made: s.65DAA(2). Substantial and significant time is defined in s.65DAA(3) as:
(3) 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
The father proposes orders which provide for substantial and significant time. Under the mother’s proposed orders, substantial and significant time does not come into effect until 2018 when X is 6 years old. I am satisfied that it is in X’s best interest that the father spend substantial and significant time with X enabling him to be involved in X’s daily routines and part of occasions or events that are of particular significance. I am further satisfied that it is reasonably practicable for X to spend substantial and significant time with his father. The distance and time taken to travel between the parent’s household is not excessive.
What Orders should be made?
I will deal with each of the matters in dispute with respect to the precise wording of the orders each party believes the Court should make.
When Time should cease during weekends
The father’s proposed order is that his time with X on each alternate weekend, end for the years 2015 and 2016 at 5.00pm. This is the time at which the father’s time with X ends under the current interim orders. The mother wants the time to end at 4.00pm. She says that the return of X at 5.00pm does not allow enough time for her to feed, settle and have X asleep at his usual bedtime (6.30pm) which is critical given he has started at (omitted) School the next day (Monday).
I accept that in 2015, given X attends at (omitted) School on the next day, an opportunity should be allowed for X to settle in on the Sunday night. I am satisfied that 2 hours is more than enough for the mother to achieve this. I will for the year 2015 provide for the father’s time with X to end at 4.30pm and allow the father’s time with X to commence a half hour earlier. X will be a year older in 2016 and I am satisfied that he will have developed so that his bed time is later. I would not provide for an earlier return time in 2016.
Overnight time during the week
The mother seeks orders that the father’s overnight time with X during the week not start until 2018, one year after he begins school. She submits that if there is to be time during the week, then the father’s time with X should only be during the day, after (omitted) School finishes to 5.00pm. Her reasons are two-fold. Firstly, she argues that X should have a set routine where he is able to walk to (omitted) School and back to her house from (omitted) School each day. She argues that the adherence to this routine is in the best interests of X and should prevail over considerations of X spending time overnight with the father. She referred in her submissions to her intention to create “a flowing schedule”. Her second reason is that overnight time with his father is not in X best interests as she says she has observed X displaying behaviour indicative of separation anxiety.
The mother’s commitment to a schedule or routine she has established for X over and above considerations about the benefit of X having time with his father has, as I have earlier observed, prevailed throughout these proceedings. This approach in my view is misplaced when regard is had to X’s best interests. I have also earlier rejected the mother’s submissions that overnight time during the week will adversely affect X’s emotional or intellectual development. I am satisfied, contrary to the mother’s submissions, that it is in X’s best interests to have overnight time with his father during each week of the (omitted) School/school terms.
I will order that the father spend overnight time with X during the week commencing 2015.
Additional daytime in the alternate week
The father seeks an order that, in the week where he will not spend time with X, he spend time with X on Fridays from the time (omitted) School ends to 5.00pm. The mother opposes this order.
The father’s reason for seeking this additional daytime in the “off week” is that from the overnight time on Wednesday to the Tuesday overnight in the next week is a lengthy period of time given X’s age. The mother argues that there would be too many changes under the father’s proposal. The mother also expressed concerns that the father may not use the time to actually spend with X and that he hands over the care of X to others on the day.
I agree that, given X’s age, an absence from Wednesday to the Tuesday in the following week may not provide the regularity in time spent necessary to further the quality of the father’s relationship with his son. I am not convinced that allowing time with his father during Friday would introduce changes which would be too difficult for X to manage. I agree with the mother that, as the father seeks this additional daytime to spend with his son, it should be time he actually spends with X.
Taking into account the submissions of the parties and having regard to X’s best interests, I have decided that I should order daytime spent by the father in the “off week” on Friday. I am satisfied that the father should be required to be in attendance during this time spent. If he is unable for any reason to be in attendance, he shall advise the mother no later than 7.00pm on the preceding Wednesday that he is unable to spend time with X during the forthcoming Friday.
The mother seeks a general order that if the father is unable to care for X during the time X is in his care, she should be given the option of caring for X. By this she means, ahead of the paternal grandmother or Ms M (or another partner of the father or any other person). She said her concern is that the father’s partner will be caring for her son on a regular basis instead of being with his mum while his dad is at work. She also resists any order regarding changeover that allows a person other than the father to collect the child.
In her submissions on these matters, the mother was unduly focused on two things. First, her suspicion that the father is simply going to prioritise his work for substantial periods of time over spending his time with X and second, that the father will handover responsibility to Ms M. The mother is adamant that she does not want a stranger caring for X. Setting aside the fact that Ms M is not a stranger in X’s life and neither is the paternal grandmother, the mother’s concerns are in my view misplaced. I have already said that it seemed to me the mother had yet to move on from the grief and anger she feels from the break up of her relationship with the father. The realities of life are that circumstances arise where the spend time parent may not always be able to be in substantial care and attendance. They may reach out to partner’s or extended family to assist. There is nothing wrong with this. The mother simply believes that the father will drift from one partner to another and expose X to a string of different partners. There is no evidence to support this view of the mother’s save her subjective anxiety flowing from the separation.
I would not make the order sought by the mother.
School Holidays
Ms D recommended that during school holidays in 2016, the father spend time with X in 3 day blocks so that in a two week period there are 2 x 3 day block periods. Both parties agree with this.
Commencing the 2017 year (which includes the long summer holidays), Ms D recommended the block in time be increased to 5 days. The mother seeks orders that the time spent by the father be in 4 day blocks. I see no reason why the block of time during the long summer holiday should not be 5 days as by this stage X will be five years old. The proposal by the father that there be a Monday to Friday in each alternate week is sensible and gives rise to an order which is easier for the parties to implement. I will make the order sought by the father and specify that the block period commence from 26 January 2016.
Ms D recommended that during school holidays from January 2018 onwards (X having completed his first year of school) X spend half school holidays with both parents. The mother seeks that school holiday time from January 2018 onwards be in 5 day blocks. There are two problems with the mother’s proposal. First, given X’s age time spent with each parent for half the school holidays is in his best interests. It will enable him to participate in full weeks of time with each parent during school term holidays and, during summer holidays enable the parents, if they wish, to take X on holidays in regional Victoria or outside of Victoria. Second, having 5 day block periods enduring into the future are likely to become confusing regarding the implementation and may lead to further litigation. This is not in X’s best interests. I will provide from 2018 onwards that X spend half of each holiday with his parents.
Special Days
The only dispute in relation to the sharing of Christmas time is that the mother seeks that she have the child earlier than the father would on Christmas day. I see no reason for this difference and therefore adopt the father’s proposal.
X’s birthday will always fall during the long school term holidays. Both parties seek specific arrangements for them to share this day. I pointed out to the parties that, whilst this may be appropriate when X is young, as he grows up there may be occasions when it is in his best interests to join one or other of his parents and perhaps family on holidays interstate or overseas. An order dividing up the time X spends with his parents on his birthday may, unless the parents by that stage are able to effectively communicate and discuss alternate arrangements, prove an inflexible hurdle. As both parents seek an order of this nature and I am confident that over time the parents will be able to put aside their conflict and work in X’s best interests, I will include such an order.
The dispute over the shared time on X’s birthday arises from the mother’s desire to have an order that provides her substantially more time with X on his birthday. I am satisfied that in X’s best interests his time with his parents on this special occasion should be equally shared. In submissions both parties agreed that the time should be from 12 noon to 5.00pm. I will make that order.
The mother seeks orders that the child spend time with the parent with whom he would not be spending time on Easter Sunday. The mother says that she is (country omitted) and that day is significant to her and her family. There was no evidence in her affidavits to this effect. Where Easter falls within the first term school holidays, such a provision in my view simply introduces an unnecessary change. I would not accede to this proposed order of the mother.
The mother seeks orders that enable a parent to spend time with X on their birthday, where X would not normally be in their care. She proposes that the father have two hours if his birthday falls on a school day and 4 hours otherwise. She proposes that she have X for 4 hours.
The father has not proposed any orders in relation to the parents’ birthdays. I am satisfied that it is appropriate for X to be able to join with the parent in celebrating his or her birthday. I am satisfied that the order should provide for equal time of four hours on a week day or weekend. I will allow the parents to come to a mutual arrangement and, in absence of agreement, I would provide that X spend a period of four hours with the parent from the time school finishes.
I have decided that it is appropriate to provide that the orders with respect to special days may be varied by agreement.
Illness
The mother seeks an order that “until the child reaches the age of 6 years the father will promptly return the child to the mother should the child require substantial home care, as a result of the (sic) emergency”.
The father opposes such an order.
The mother argues that this order is necessary because X should be with his primary attachment figure when he is seriously ill and requires substantial care at home. She refers to the respiratory infection suffered by X last year. I will not make this order for the following reasons. First, the care at home following an emergency maybe for reasons which do not necessitate a child being with his primary attachment figure. For example, a fracture or injury requiring stitches. Second, the order proposed is too open for interpretation: what does “substantial” mean? Finally, it seems to me that this order sought by the mother generally reflects her anxiety and mistrust regarding the father capacity which in my view is unfounded.
Restraint on attendance at sporting events
The mother seeks an order that the parties be restrained from taking X to (hobby omitted) competitions. This is really directed to the father who apparently engages in such sports. The mother made submissions of the types of unacceptable behaviour she alleges occurs at these events (drugs and violence). I would not make such a restraint in the absence of probative evidence.
Again, I would expect both parents to exercise a mature and child focused approach on sporting events they allow their son to attend.
Conclusion
For the reasons set out in this judgment I make the orders set out above.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 20 March 2015
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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Remedies
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