DALMEDA & MCCLINE (No.2)
[2020] FCCA 2502
•10 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DALMEDA & MCCLINE (No.2) | [2020] FCCA 2502 |
| Catchwords: FAMILY LAW – Application for final parenting orders – mother’s seeks to relocate interstate – overseas travel for child. |
| Legislation: Family Law Act 1975 (Cth) ss.60B, 60CA, 60CC, 65DAA |
| Cases cited: AMS & AIF (1999) CLR 160 Taylor & Barker (2007) FLC 93–343 |
| Applicant: | MR DALMEDA |
| Respondent: | MS MCCLINE |
| File Number: | MLC11259 of 2018 |
| Judgment of: | Judge McGuire |
| Hearing dates: | 11, 12 & 26 June 2020 & 24 July 2020 |
| Date of Last Submission: | 10 August 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 10 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr E. Hall |
| Solicitors for the Applicant: | McDonald Slater Lay |
| Counsel for the Respondent: | Ms D. Harris |
| Solicitors for the Respondent: | Family Law Life |
ORDERS
That the parents have equal shared parental responsibility for the child X ('X') born in 2016.
That X live with the mother.
That each parent be restrained from moving X’s primary place of address from the greater Melbourne area without the express written consent of the other parent.
That X spend time with the father as follows:
(a)Each alternate week from the conclusion of school or kindergarten (or 3.30 p.m. if not a school day) on Friday until the following Monday at the commencement of school or kindergarten (or 9.00 a.m. if not a school day);
(b)Each Wednesday from the conclusion of school or kindergarten/child care or 3.30 p.m. if not a school day until Thursday at 9.00 a.m. or the commencement of kindergarten/child care/school;
(c)From and including the end of third term holidays of the school year 2021 for one half of each of the term school holidays as agreed between the parents and failing agreement then for the first half of such holidays being from the first Friday at the conclusion of school or 3.30 p.m. until the second Saturday at 12.00 noon but subject to order (5) herein;
(d)As from the Victorian gazetted summer school holidays in 2021/2022 with each of the parents for blocks of twenty-one (21) days as agreed between the parents but failing agreement then with the father for the first half of such holidays in 2021/2022 and in each alternate year thereafter and for the second half of the holidays in 2022/2023 and in each alternate year thereafter but with the mother for the second half of such holidays in 2021/2022 and in each alternate year thereafter and for the first half of such holidays in 2022/2023 and in each alternate year thereafter provided that each parent be entitled to remove X from the Commonwealth of Australia during any such allocated period for travel only to countries which are signatories to the Hague Convention on Child Abduction and provided each parent intending to travel overseas with X first give not less than sixty (60) days prior notice in writing to the other parent and provide a written itinerary, evidence of pre-paid return air tickets, and details of residential and telephone contacts to the other parent not later than twenty-eight (28) days prior to departure;
(e)Provided that all weekend and Wednesday overnight time for X with the father be suspended during each school holiday period and with the intention that X also spend half of each term and summer school holidays with the mother; and
(f)Such other times or variations of the above as agreed between the parents from time to time.
That in any event from 2021, but not prior to 30 August 2021, the father be permitted to remove X from the Commonwealth of Australia for the purposes of travel to Country B only for one period only of term school holidays each year and such period not to be longer than fourteen (14) days subject to the father providing the mother with not less than sixty (60) days prior notice in writing of such intention and to provide the mother with copies of pre-paid return air tickets for X not later than twenty eight (28) days prior to departure, together with copies a full itinerary and details of residential arrangements and telephone contacts in Country B, not later than twenty eight (28) days prior to departure and provided that should such time occur then X is to spend the entirety of the next in time term school holidays (whether that be in the same or the following calendar year) with the mother.
That for the purposes of these Orders the parties each sign all documents and applications necessary for X to obtain and maintain a current Australian passport and that the mother hold such passport in safe keeping but to provide such passport to the father for the purposes of these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Dalmeda & McCline is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT LAUNCESTON |
MLC 11259 of 2018
| MR DALMEDA |
Applicant
And
| MS MCCLINE |
Respondent
REASONS FOR JUDGMENT
Applications
The father is the applicant in parenting proceedings in respect of the parties’ son, X born in 2016 (aged four years) (“X”). The parties resolved their property settlement issues before the taking of evidence at this trial.
The father asks for orders whereby X spend time/live with him fortnightly on weekends from Friday afternoon until Monday morning, together with each Wednesday overnight, which I calculate to be five nights per fortnight which is just an increase of one night on the current arrangements. The father also asks for block periods of time with X during all school holidays. Essentially, however, the issue for the father is his argument against the mother's proposal to relocate with X from Melbourne to Sydney.
The mother argues that she be permitted to relocate X to live with her in Sydney. She proposes a continuation of the current arrangements for X should the parties live in the same city including should the father also relocate to Sydney. If, however, she be permitted to relocate with X to Sydney and the father remains in Melbourne then she ultimately proposes, after a graduated regime, for X to spend each alternate weekend from Friday afternoon until Monday morning with the father together with one half of all school holidays. Such weekends would alternate for one fortnight in Melbourne and the other in Sydney and for these purposes the mother would propose that she vacate her home in Sydney for the benefit of the father and X until 2024.
There are also issues between the parents in respect of overseas travel for X. The father is of Country B origin. He would like to travel immediately with X to Country B and to obtain an Country B passport for the child. The mother says that X can travel on an Australian passport but, in any event, should not be able to travel until after 2022 by which time he would have just turned six years of age. Her only concession to earlier travel for X to Country B is if she too travel and be primary carer for X during such periods.
Both parties ask for an order for equal shared parental responsibility for X.
Background
The father is 40 years of age and the mother 39 years. They met in City C in about 2009 and where the father was resident and the mother was studying. They commenced a relationship in about 2010 or 2011.
In 2014 the parties agreed to move to Australia and specifically to Sydney where the mother's parents and extended family lived.
In 2014 the parties moved from Melbourne to Sydney where the mother had obtained employment prior to the move and the father readily obtained employment upon the move to Melbourne.
The parties married in 2015.
The child X was born in 2016.
The mother was diagnosed with post-natal depression after X’s birth and received psychological counselling until June 2018 and there is evidence of a previous diagnosis in the mother’s depression as long ago as 2004.
The parties separated in Melbourne on 3 February 2018. X remained with the mother but commenced spending frequent time with the father.
The father says that the mother unilaterally reduced his time with X in or about mid 2018 and the father commenced proceedings in this Court for parenting and property orders in an Application filed 21 September 2018.
On 12 November 2018 interim orders were formalised including for regular overnight time between X and the father together with an order for a family report.
On 4 March 2019 the family report by Mr D was released recommending that X remain in Melbourne and spend four nights per fortnight with the father.
In 2019 the father became an Australian citizen.
The trial of these issues commenced before her Honour Judge Boymal in Melbourne on 9 December 2019. The trial was aborted on 10 December 2019 on the mother's successful application that her Honour recuse herself from the hearing. The trial was remitted to Judge McGuire and proceeded in June and July 2020. Final property orders were made by consent between the parties on 12 June 2020.
The mother is employed for Employer E as an admin assistant. Her role has been reduced and, she says, is in jeopardy due to the COVID 19 virus. She has an income of approximately $39,000 per annum. The mother says that she has an opportunity for employment as a Manager in a business run in Sydney by her two brothers.
The father is employed by Employer F as a professional. He discloses a gross income of $76,586 per annum.
X attends childcare and kindergarten. It is anticipated that he will commence formal schooling in 2022.
The Father's Case
The father argues that X has an established, safe, comfortable and beneficial relationship with each of his parents. Essentially the father argues that, at four years of age, a relocation for X to Sydney will cause such changes to the relationship between father and son that there will be a negative impact for X. In particular, the frequency for X's direct contact with the father will be significantly reduced as will the availability of flexibility and spontaneity in that relationship.
The father argues that the practicalities and logistics of the mother's proposal would be onerous for X and for each of the parties actually and financially.
The father suggests in his evidence that the Court should be wary of the mother’s insight and ability in prioritising X's relationship with the father in that he argues that the mother opportunistically reduced and manipulated time for X with the father following the parties separation in order to enhance her argument for relocation to Sydney.
The father says that the mother's claims of feeling ‘isolated’ in Melbourne are exaggerated or embellished to give force to what is simply her preference to move back to Sydney. He says, in any event, that the mother's actual and historical connections to Sydney and her family are tenuous in that it is she who initiated the move to Melbourne and after she had lived for many years away from Sydney. The father says that the mother's relationship with her parents has not always been a cordial one.
Alternatively, the father says that the mother's relationship with her family can be continued by regular interstate visits by her to Sydney or by her parents to Melbourne and by various social media and essentially in the same manner she argues that X's relationship with him could continue and flourish if she be permitted to move to Sydney.
The father argues that any claimed emotional health difficulties suffered by the mother are innate and not necessarily caused or connected to her living in Melbourne.
The father says that he is settled in Melbourne and has established employment of six years duration and social relationships and is not desirous of moving to Sydney. He says that he left his employment and family in City C, Country B to move to Sydney and then three months later to Melbourne on the behest of the mother.
The father would like to travel with X to City C, Country B so that X can experience and establish relationships with his extended paternal family. The paternal grandfather is 80 years of age and in poor health.
The Mother’s Case
The mother says that she is and has been X's primary carer. She says that her own mental health is suffering because of her sense of isolation and lack of social connection and contact in Melbourne. She says that her health will be enhanced by proximity and connection to her parents and family in Sydney and hence so would her parenting of X and vicariously, therefore, X's best interests. There is evidence of previous diagnoses in the mother of depressive illnesses and she argues that her current unhappiness and isolation compound her current and potential health.
The mother says that her current employment in Melbourne is tenuous but that she has an offer of permanent employment as a Manager with a family firm in Sydney which would bring her an income near double her current income. She says that she would have the assistance of family members to support her emotionally and actually in her care of X so as to allow her to pursue her employment.
The mother says that the father himself has little or no actual or historical connection with Melbourne and that he too could move to Sydney and then maintain the current frequency and flexibility of his relationship with X. She says that the father has qualifications and experience that would allow him entry into the workforce in Sydney.
Alternatively, the mother says that she would continue to support X's relationship with the father should she be permitted to move with X to Sydney and the father remain in Melbourne. She would vacate her accommodation in Sydney for some three years to allow the father and X to spend time together on weekends. She argues implicitly that X's relationship with the father is a developing one but one which is so established that it would endure the move to Sydney and the changes that would attend that move.
The mother will not move to Sydney should the Court not permit the relocation of X.
The Evidence
The Father
The father gave evidence and relied on two affidavits of 25 November 2019 and 28 May 2020 together with a sworn financial statement of 25 November 2019.
The father was a good witness. He gave his evidence in an informed and child focused manner. He was prepared to make admissions against interest and, in particular, was positive and complimentary in respect of the mother and her parenting of X.
I observed the father to be of calm and considered demeanour and to be genuine in his prioritising of X's needs. Whilst he gave evidence of his positive relationship with X, it is clear that he understood this relationship to be something of a continuing ‘work in progress’.
Mr Dalmeda impressed as a parent to be willing and able to work co-operatively with the other parent, despite their relationship breakdown, to prioritise X's best interests.
Mr Dalmeda has clearly considered the possibility of a move by him to Sydney but was able to give cogent, considered and informed reasons for his preference to remain in Melbourne and also for X to remain in Melbourne.
He says he moved to Melbourne from Sydney just three months after they arrived in Australia. He says that he has secure employment of six years duration with Employer F and by its title is not transferrable employment.
The Mother
Ms McCline was also an impressive witness albeit at times and understandably more forceful in her efforts to shore up her case and to emphasise the strength of her argument. Nevertheless, she too was able to be positive and complimentary in respect of Mr Dalmeda personally and of his parenting of X.
Having had the benefit of seeing and hearing Ms McCline give her evidence, I am satisfied that her quest to move with X to Sydney is a genuine one in respect of her preferences and I did not detect any agenda in her to relocate so as to undermine or thwart the relationship for X with the father.
Mr G
The mother adduced evidence from her brother, Mr G. He filed two affidavits on 26 November 2019 and 4 June 2020.
In his first affidavit Mr G deposes to a good and friendly relationship the father. In his second affidavit he deposes to 'discussions with Ms McCline in relation to her joining the family business and taking on the role of Manager…' Mr G is clearly partisan and supportive of his sister and I do not criticise him for that. Cross-examination, however, exposed his evidence to be somewhat selective. It seems that Mr G’s brother, Mr H, might not necessarily share the close family connection with the mother as does Mr G. Nevertheless, I generally accept his evidence that the family would endeavour to provide a position in their company for the mother.
Similarly, Mr G, somewhat reluctantly, agreed with the father's Counsel in cross-examination that he had engaged in communications with the father suggestive of his sister’s poor relationship with her parents. I comment only that his evidence would have been stronger overall if he had been more inclined to full disclosure in his affidavits.
Ms J
Ms J is a psychologist engaged by the mother. She provided two affidavits affirmed 27 November 2019 and 1 June 2020 annexing reports on the mother of 27 November 2019 and 30 May 2020 respectively.
The utility of Ms J’s reports are extremely limited in any forensic sense. She has met with neither the father nor the child. Cross-examination disclosed that she had not received a full history, in particular a full medical history, from the mother including importantly that the mother was diagnosed in 2004 with depression. Ms J does not claim any experience in family law matters save and except in ‘assessment and treatment of adults, couples and families’. She is apparently neither a clinical nor forensic psychologist. Ms J gave evidence, as expected, informed only by her client and hence without the objectivity obtained by full information and independence.
Ms McCline was referred by her General Practitioner to Ms J in July 2019. There were eight sessions between July and November 2019 and apparently some more recent contact, albeit apparently not direct face to face between psychologist and client, shortly prior to this trial. The mother did not consult Ms J between November 2019 and May 2020.
I glean little assistance from Ms J’s reports and evaluations given the limitations set out above. I also doubt Ms J’s expertise to make conclusions such as 'there is little doubt that her feelings of isolation, grief and financial stress will impact on her ability to parent X'.[1] Similarly, but understandably where Ms J is the mother’s therapist, I find generally Ms J's comments to be self-serving and lacking of objectivity when, for instance, she says:[2]
…it is the opinion of the writer, that if Ms McCline was to reside in Sydney and have access to her immediate and extended family and friends for support, her functioning in any meaningful respect, is likely to have a more positive impact on her overall wellbeing and provision of care for X including the overall social, emotional and cognitive development of X having those wide family attachments.
[1] [6] of second report prepared by Ms J
[2] [9] of second report prepared by Ms J
Notably, in her first report[3] Ms J has something of an equivocal if not contrary, opinion when she says:
There is little doubt Ms McCline will continue to present herself as a committed parent and stable attachment figure for X irrespective of her place of residence. It is more reasonable to expect that if Ms McCline was to reside in Sydney and have access to immediate and extended family and friends for support, her functioning, in any meaningful respect, is likely to have a more positive impact on her overall wellbeing and provision of care for X including the overall social, emotional and cognitive development of X having those wider family attachments.
[3] [14] of first report prepared by Ms J
I do, however, accept Ms J’s opinion[4] that:
Ms McCline does not meet the current criteria of any Anxiety or Mood based Disorders as set out in the DSM/V. Her cognitive functioning was intact and insight was present.
[4] [8] of first report prepared by Ms J
Ms J noted that Ms McCline's mood had 'stabilised' and 'is now more adept to resolving her frustrations with improved coping mechanisms when assisted with regular and ongoing professional support'.
Ms J does, however, observe in May 2020 that Ms McCline's presentation had 'diminished considerably' from the first report to the second and that she now presented with symptoms of “Anxiety and Grief”. Nevertheless, Ms J’s report suggests that the mother’s anxiety was positively addressed by cognitive behavioural techniques.
Generally, I am unable to accept Ms J’s evidence being of any or any persuasive weight for the reasons set out above and particularly where the mother did not see fit to advise Ms J of her diagnosis of depression in 2004 after which she has consistently lived away from her extended family in Sydney.
Family Report – Mr D
Mr D is a family consultant with qualifications in social work. His report in this matter is dated 4 March 2019 and prepared after interviews with the parties and observations with X on 19 February 2019.
Mr D gave evidence and was cross-examined.
In his report to under the heading ‘Recommendations’ and at [85] Mr D concludes inter alia the following:
[85]Based upon the aforementioned and in the absence of any other information to the contrary, it is respectfully recommended Mr Dalmeda and Ms McCline equally share parental responsibility regarding their son, X born in 2016.
[86]X continue to live with his mother, Ms McCline.
[87] Ms McCline to remain living in Melbourne and not be permitted to relocate with X to Sydney. Further, that the parties not move or relocate within the Melbourne metropolitan area beyond a 45 minute drive from their respective residences.
[88] Mr Dalmeda to spend time with X on alternate weekends from the conclusion of child care, kindergarten or school on Friday to Sunday 5:00pm, plus each Tuesday from the conclusion of childcare, kindergarten or eventually school until the commencement of same the following Wednesday morning. Furthermore, time together on alternate Fridays, when X has swimming lessons and it is not Mr Dalmeda’s weekend, to continue whereby Mr Dalmeda attends X's swimming lessons and as negotiated between the parties, sometimes this becomes a single overnight visit.
…
[90]Once X commences full–time education in Prep, the parties to equally share all school holidays.
Mr D's report echoes my own observations of these parents in that they are objective and capable of being complimentary each in respect of the other.[5]
[5] see [24] and [36] of Mr D’s report
Mr D had the benefit of observing X with each of his parents. At [61] he states:
The observed interactions between Ms McCline and X appeared positive and no issues of concern were noted. Such observations were suggestive of the notion that a close, warm and loving relationship exists between mother and son.
Almost precisely the same observation is made in respect of X and the father at [68].
Mr D supports the parents continuing equal shared parental responsibility for X [70].
The positive traits of these parents are emphasised in Mr D's report at [73] thus:
This Family Report has highlighted that although there are some issues the parties have viewed differently and Ms McCline is seeking to relocate to Sydney, overall both parties are extraordinarily supportive and complimentary of one another, particularly when it comes to the parenting of X. Neither party holds any concern regarding X in the other parent’s care and there is a noticeable absence of risk in this matter. During the interview day the parties were polite, cordial, and there was little indication they were even litigants. On the whole, as two separated parents with young child, both parents were impressively respectful of the other.
Mr D's comments at [74] are notable and relevant. He says:
Often in relocation matters, the parent seeking to move with the subject child/ren raises this issue at the forefront of discussions, and makes it blatantly clear of their desire to move, almost with a sense of desperation and urgency. Interestingly, Ms McCline’s position of wishing to relocate to Sydney was not raised at the beginning and as discussions progressed, she initially reflected upon the status quo and was emotionally saddened because X has to endure an entire week without seeing his father within the parameters of the status quo. Whilst she reflected upon the current parenting arrangements positively, she explained the parties have added a Friday visit, which sometimes becomes an overnight, because she recognises the value of Mr Dalmeda's time and relationship with their son.
Ms McCline repeated to Mr D her rationale for wishing to return to Sydney in terms similar to her evidence to this Court. She said that she seeks support of her family. Nevertheless, some contradictions in Ms McCline's emotions, not in any way being a criticism of her, are noted as a 'conundrum' by Mr D at [75] where he says:
Notwithstanding, Ms McCline seeks to relocate to Sydney with X on the basis that she has reportedly always wished to return, she seeks the support of maternal family, takes issue that X has no family in Melbourne and proposes Mr Dalmeda spend time with X on alternative weekends. It was pointed out to Ms McCline that if she took issue with the status quo being insufficient time between Mr Dalmeda and X, how did she come to terms with her relocation proposal, which would bring about an even greater reduction in time between Mr Dalmeda X (sic). Whilst she acknowledged this conundrum, in this Family Consultant’s opinion, she elevated her interests and desire to return to Sydney as more important, even when she clearly acknowledged the value Mr Dalmeda brought to X's life. During interview she was moved to tears noting how she did not like the status quo which does not allow X to spend time with his father for an entire week following the midweek visit. In this Family Consultant’s opinion, it would appear likely that the gravity of further limiting X's time with his father by an interstate move may not come to light until well after any move and the reality of such sinks in for Ms McCline.
At [80] Mr D notes X's tender age and opines:
… X is simply too young to effectively manage parenting arrangements which would necessitate interstate travel. X is of a developmental level and age that he has just reached the threshold of progressing to overnight time and generally younger children require opportunity to spend regular and more frequent time with the parent with whom they do not primarily live. Whilst it is clear X has a well-established and positive relationship with both parents, this Family Consultant is of the opinion that should he relocate interstate with his mother, such would likely result in a detrimental impact upon his relationship with his father. He is too young to maintain sufficient contact, involvement, communications and the like with a parent living 1000km away. X is too young to genuinely have an interest in or access electronic means of communication. Moreover, the parenting arrangements proposed by Ms McCline would necessitate X spending every second weekend in a hotel with his father someplace in Sydney and his mother someplace in Melbourne, with a further likelihood that there would be different hotel rooms, simply adding to the confusion, lack of stability or predictability for such a young child.
At [81] Mr D notes that the mother's proposal would be both practically and financially burdensome for both parents. It seems clear that Ms McCline's proposal that she vacate her home in Sydney in favour of Mr Dalmeda and X was not mentioned and given that it now forms a part of her proposal, it may be a response to Mr D’s opinions.
Relevant Law
The orders that I am asked to make are first and foremost parenting orders and that being the case I am to have X's best interests as my paramount consideration.[6]In determining those best interests I am mandated to reference the parties’ proposals and the probative evidence to the numerous factors set out in s.60CC(2) & (3) of the Act against a background of the objects and principles of the legislation set out in s.60B which provides:
[6] Family Law Act (1975) (‘the Act’) s.60CA
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
…
Whilst there are numerous references in these reasons to the mother's proposal for 'relocation' and such matters are often referred colloquially as 'relocation cases' the Act itself is silent as to the notion of relocation. It follows, therefore, that relocation of a child is expressly neither prohibited by law nor is there a presumption against it. That is, a proposal by a parent to relocate a child is simply one factor to be considered among numerous others in arriving at orders which, on balance, are in the best interests of the child.
Importantly, the jurisdiction under the legislation is based fundamentally in respect of the rights and interests of children. That is, whilst a Court can allow or prevent the relocation of a child as a part of parenting orders, it cannot usually, per se, prevent or dictate the movement of an adult. Such has been recognised some time ago by the High Court AMS & AIF[7] where their Honours specifically noted and considered the 'right of freedom of movement of an adult' but subject always to the best interests of the child.
[7] (1999) CLR 160
Amendments to the Act in 2006 raised some debate as to the relevance of historical authorities in respect of the relocation of children. However, Full Court decisions after that date and notably Taylor & Barker[8] confirmed the earlier authority of Paskandy & Paskandy[9] that there can be no dissection of a parenting matter into discrete issues of, firstly, who the child shall live with and then a further or separate issue as to whether a relocation should be 'permitted'. The Court in Taylor & Barker observed:
In our view his Honour dealt with the relocation proposed in the context of his consideration of s60CC and s65DAA, at least insofar as it was possible to do so. It should be implicit in our conclusion in relation to this ground, that a relocation proposal should continue to be considered and evaluated, so far as is possible, in the context of the making of the necessary findings in relation to the s60CC matters; however, as we will shortly explain, such a proposal now also needs to be considered in the context of s65DAA.
[8] (2007) FLC 93–343
[9] (1999) FLC 92–878
Despite the general nature of the Court’s focus on the best interests of the child being the paramount consideration, peculiarities of matters involving a proposed relocation of a child have seen the High Court in MRR & GRR[10] emphasise the dual requirements of parenting orders to be both ‘in the child's best interests' and 'reasonably practicable'.
[10] (2010) 240 CLR 461
Section 65DAA provides a course of statutory and intellectual consideration for Judges flowing from the presumption of equal shared parental responsibility in parents for their children with the first step at subsection (1) stating:
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the Court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Subsection (2) provides:
(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b)the Court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
The Court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
The term ‘substantial and significant time’ is defined in s.65DAA(3) as:
(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.
In the matter now before me, neither party seeks orders for X to spend equal time between the parents. The father's proposal is that X spend five nights per fortnight with him. This sits squarely with the definition of 'substantial and significant time'. The mother's proposal, however, fits neither definition of 'equal time' nor 'substantial and significant time'. By reason of geography and practicality, the mother's proposal is limited to weekends and school holidays for X with the father except, of course, should the father also decide to relocate to Sydney which is not a part of his case.
Significantly, the High Court in MRR & GRR (supra) noted at [15]:
Section 65DAA(1) is concerned with the reality of the situation of the parents of the child, and not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s65DA(1) is not determinative of the questions arising under s65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both the parents remained in (X) location, (the trial judge) was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.
Whilst the determination for the Court is, of course, discretionary, various Full Courts have helpfully provided 'principles' which can be extracted to assist trial judges in the consideration of parenting matters involving a proposed relocation. They can be summarised as follows:
·relocation matters are to be determined generally with reference to Part VII of the Act;
·that child's best interests remain the paramount but not the sole consideration;
·a relocation proposal is to be evaluated within the context of the necessary findings in relation to the child's best interests (s.60CC matters) and where appropriate (s.65DAA) reasonably practicability;
·the Court must consider the parties’ proposals including the advantages and disadvantages of the proposed relocation, although the Court may be required to formulate proposals itself in the best interests of the child;
·neither party bears an onus to establish that a relocation or a continuation of an existing regime will best promote the interests of the child;
·an applicant for relocation need not show 'compelling reasons' in support of the relocation but must produce probative evidence which permits the Court, on balance, to find that a parenting order involving a relocation is in the best interests of the child; and
·the child's best interests must be weighed and balanced with the 'right' of the proposed relocating parent’s freedom of movement but that such an adult 'right' must ultimately defer to the child's best interests.
Section 60CC factors
s.60CC(2)(a) – the benefits to the child of having a meaningful relationship with both parents
Each parent acknowledges that X has an attachment and comfortable relationship with the other. Mr D similarly observes X's relationships with each of his parents.
In her evidence in Court, however, Ms McCline, perhaps in emphasising her primary care role, did suggest that X’s relationship with his father is not yet as emotionally developed as is the child's relationship with her. She, perhaps correctly, sees herself currently as X’s primary source of support and is providing him with a secure home base all of which are valid comments given X's young age.
The father relies on this consideration to argue that his current 'meaningful’ relationship with X might be negatively impacted by the mother's proposed relocation of the child to Sydney. In this sense Mr Dalmeda also seems to be acknowledging that his relationship with X is perhaps still a 'developing' one? It is important, however, not to confuse the concept of 'meaningful relationship' simply with quantity of time. The Full Court in McCall & Clark[11] has endorsed the adjective 'meaningful' in qualitative rather than quantitative terms and opined that the enquiry for the Court should be a 'prospective' one but also one obviously considering the evidence as to the current nature of the relationship between the child and parent. Further, and whilst Mr Dalmeda understandably emphasises this consideration, it should not be seen as determinative of the Courts determination but simply one factor to be considered with the numerous other references in s.60CC(2) and (3) in the ultimate determination of X's best interests.[12]
[11] [2009] Fam CAFC 92
[12] Champness & Hansen [2009] FamFC 96
Nevertheless, Mr D in constructing his recommendations does place some emphasis on this consideration. Firstly, he notes X's tender age. He notes the benefits for young children in a high frequency of direct contact with each parent and where such cannot easily be substituted by contact through media.
s.60CC(2)(b) – the need to protect X from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence
Fortunately for X such matters do not feature in the evidence before me. Indeed, Mr D observes a respectful, cooperative and communicative relationship between the parents.
s.60CC(3)(i) – any views expressed by the child and any factors (such as maturity or level of understanding) that a Court thinks are relevant to the weight it should give to the child's views
X is just four years of age and not capable of formalising any views or preferences as to his living and parenting arrangements.
s.60CC(3)(b) – the nature of the relationship of the child with each of his parents and any other persons including grandparents or other relative
Although each of the parents claim close and attached relationships between X and themselves, it is reasonable to accept the mother's evidence that X’s primary attachment is with his mother if only through the fact that he has spent more time with her. As mentioned above, it is equally reasonable to conclude that X's relationship with his father is still in the 'developing' stage, although the child is observed by Mr D to be completely at ease in the father's company and that there are signs of strong attachment.
The issue for the Court is the impact, if any, of the mother's proposed relocation of X on the relationship between father and child. This must be viewed within the context of X's tender age. Current contact between X his father has a high frequency which will necessarily be reduced by the geographical limitations of a relocation. Further, opportunity for flexibility and spontaneity in that contact relationship will also be likely to be lost. These might be seen as important ingredients of parent/child relationships, particularly in a child of younger years, and where the vagaries of distance can be mitigated to a degree as children grow older.
s.60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate and make decisions about long–term issues in relation to the child; (ii) to spend time with the child; and (iii) to communicate with the child; and the extent to which each of child’s parents has fulfilled, or failed to fulfil, the parents’ obligations to maintain him
The evidence generally, suggests that each of these parents are altruistic and child focused in their parenting save and except where the father argues that, immediately following separation, the mother was less than accommodating in X's time with him where the father argues that Ms McCline may have been deliberately putting herself in a position of 'primary parent' in anticipation of her application to relocate with X to Sydney.
s.60CC(3)(d) – the likely effect of any changes in the child’s circumstances, and the likely effect on the child of any separation from either of his parents, or any other child, or any other person (including grandparent or other relative), with whom the child has been living
This consideration is at the crux of the Courts to determination. X is just four years of age. Mr D notes the well-established view that young children benefit from a high frequency of contact with both their parents and that such frequency is related to the quality of the relationship. The mother's proposal would reduce the frequency of X's time with his father albeit the mother's proposal is that X would, in any event, spend each second weekend with his father.
Alternative means of contact such as telephone, Skype and FaceTime may not adequately compensate such a young child for the loss of direct contact. As mentioned above, a relocation would effectively deny flexibility and spontaneity in contact between the father and X. Attendance at weekday school and extracurricular activities would not be practical.
Further, the decrease in frequency of direct contact between parent and child will inevitably result in the child’s viewing one parent as the 'resident parent’ and the other parent as a ‘visitor’. This would be compounded by the requirements for travel, including air travel, and the utilising of non-personal accommodation.
s.60CC(3)(e) – the practical difficulty and expense of X spending time and communicating with his remaining parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relationships and direct contact with both parents on a regular basis
The mother proposes fortnightly time for X with the father alternating in Sydney and Melbourne. School commitments and Mr Dalmeda’s work commitments would effectively see such time limited to weekends and school holidays should Mr Dalmeda determine to remain in Melbourne. Superficially, such arrangements do not seem entirely unreasonable. Nevertheless, a closer scrutiny shows the practical onerous nature of such a regime which includes travel to and from airports, waiting in airports, the vagaries of airport timetables and the like. Secondly, and altruistically, Ms McCline offers to vacate her home in Sydney in favour of Mr Dalmeda and X monthly for the next few years. Again, and superficially, this seems an attractive option but one fraught with potential difficulties into the future as, for instance, should Ms McCline re-partner and, in any event, such would require a continuation of the current high degree of respect, communication and co-operation between the parents.
Mr D considers these issues in his family report at [81] thus:
Fortnightly interstate visits would also likely be burdensome both practically and financially for both parents need to be viewed realistically. If one considers Mr Dalmeda's return flight each fortnight to Sydney plus at least two nights of hotel accommodation, then every third fortnight Ms McCline and X travelling, plus two nights of accommodation in Melbourne, would likely be quite an expensive commitment as a future long–term option. In this Family Consultant’s opinion, such a proposal would not be realistic, fraught with many complications and it would not be too surprising if Ms McCline comes to experience such arrangements soon becoming too burdensome for X and then attempting to unilaterally curtail or end the interstate travel.
Whilst Ms McCline’s proposals for X's time with the father seem to have changed substantially from the time of her interview with Mr D and therefore mitigate his concerns to some extent, those concerns remain valid in a practical sense.
s.60CC(3)(f) – the capacity of each of the parents to provide for the child’s needs, including physical, emotional and intellectual needs.
Having heard the evidence of each of the parties and considered the contents of the family report, it seems that X is fortunate in having two devoted and capable parents. The only real issue for the Court in respect of capacity is a consideration of the apparent conflict for the mother in rationalising her own preferences as to where she lives with the necessary insight into the needs for such a young child to have a beneficial and successful relationship with both of his parents.
Mr D recognises the abilities of these parents and says at [82]:
In this Family Consultant's opinion, Mr Dalmeda and Ms McCline both have much to offer their young son and X would benefit greater in the long–term by having opportunity to spend regular, frequent and significant time with his mother and father as he continues to mature and eventually commence full-time education.
The mother says that her capacity to care for X may be compromised by remaining in Melbourne where her employment future is tenuous. The nature of her employment is undoubtedly affected by the Covid-19 virus world-wide. As against that she is clearly a well-educated woman with work experience world-wide. She says that her family would provide her with employment in a family business. Having heard evidence from the maternal grandmother and the mother’s brother, I have no doubt they would endeavour to assist her although the brother’s evidence was not so strong in this regard as was that of the mother herself.
s.60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristic of the child that the Court thinks are relevant
X is just four years old and the nature of his relationships with his parents and others are necessarily connected to his age. Travel and logistics are made more onerous. Methods of communication are less available and productive. Frequency of direct contact is arguably more important.
X’s heritage on his father's side is Country B. It is generally accepted that it is of benefit for children to know, understand and experience their identities from each of their extended families. The father wishes to travel with X to Country B so as to meet his ailing grandfather and other members of the extended family. The mother is cautious and reluctant and perhaps understandably fearful of the father being a potential flight risk. Interestingly, in her cross-examination, she seemed to downplay the generally accepted importance of identity connections when she said in a more pragmatic response that 'X is just four years of age and would not understand what identity is'. At the same time, Ms McCline grounds her argument for relocating with X to Sydney in part on the benefits for X in proximity and relationship with her parents and other members of his extended family.
s.60CC(3)(h) – if the child is an Aboriginal or Torres Strait Islander.
Not relevant.
s.60CC(3)(i) – the attitude to the child, and the responsibilities of parenthood, demonstrated by each of the child's parents
Generally, each of these parents is unimpeached in his and her commitment to X. Despite the demise of their own relationship, they have shown a high degree of ability to communicate and co-operatively parent X. The father criticises the mother in almost unilaterally assuming the role of primary parent following their separation but it is clear on the evidence that she now actively encourages and
co-operates in that relationship. Again, the issue for the Court is a consideration of the apparent conflict for the mother in rationalising her own preferences as to her living arrangements with an insight into the needs of her young son to have a beneficial and successful relationship with his father.
s.60CC(3)(j) & (k) - family violence and family violence orders
These issues are not argued in this matter.
s.60CC(3)(l) – the order that would be least likely to lead to the institution of further proceedings in relation to X
It is a function of Family Courts that the decisions in parenting matters are prospective in their nature and effect. As such, any significant or material change in the circumstances of either of the parents or of X may lead to further litigation. However, it remains the role of these Courts to make orders which, on consideration of usually less than optimum factual platforms, be on balance in the child's best interests and it then behoves the parents, armed with such orders, to move forward and parent accordingly.
On the assumption that family law litigation in itself is usually undesirable in respect of children's stability and best interests, Mr Dalmeda raises a relevant argument being that the mother herself has historically been unsettled in her personal living arrangements. Put simply, he says that the mother's argument that she would feel settled if permitted to relocate to Sydney is contrary to her history of frequent moves throughout Australia and overseas. He says that it was the mother who wished to relocate from City C to Sydney and then the mother who initiated the move from Sydney to Melbourne. The implication of the father's argument is that the Court should be dubious of the ability of the mother to settle even if permitted to relocate to Sydney.
Findings and Considerations
In my experience, matters involving the proposed relocation of a child, and in particular a child as young as X, are among the more difficult coming before these Courts. In the majority of parenting cases there are issues only of discrete dispute as to the allocation of time over a week or fortnight for children between their parents. However, the relocation of a child geographically will inevitably result in a significant change in a relationship for that child with each of the parents. One parent will assume a more primary role and the other a less frequent and 'visitor' status. The nature or potential of the relationship between child and parent will almost surely be changed in its frequency and therefore its type. That relationship will not have the benefit of flexibility and spontaneity. Logistical and financial issues will be added to the recipe. If a child is permitted to relocate then there will almost inevitably be a sense of loss and bitterness in the remaining parent and perhaps having longer term impact of future mistrust and communication difficulties between the parents. Opportunities for involvement by the remaining parent in the child's milestone moments, schooling and extracurricular activities will be lost or, at best, made onerous. Children, as they grow older, develop personal relationships and commitments which will then test the durability of any Court ordered time-with arrangements for the child and the remaining parent.
To the contrary, however, orders obligating an unsuccessful applicant to live in a location other than his/her preferred one will most likely inspire similar sentiments of loss and bitterness. Feelings of blame might understandably be aimed at the other parent, then again resulting in a loss of trust, co-operation and flexibility. A parent left without perceived family or other support may suffer consequent actual, practical or emotional difficulties extending to their own parenting capacities.
As such, unlike the majority of parenting matters, those involving a relocation of a child will inevitably bring a strong sense of 'win' or 'loss' in that the Court is left with little or no room for subtle construction of its orders.
Matters involving the proposed relocation of a child are often finely balanced in the weighing of the various considerations with factors clearly favouring one argument or the other. There are inevitably both positives and negatives for both sides. This matter has the added ingredient of X being of such a young age.
The evidence of each of the parties themselves and the family reporter easily satisfy me that X has the great fortune of loving and prioritised relationships with two very capable parents.
The history, at least since separation of the parents, satisfies me that X’s primary parent has been his mother. In this sense I accept the evidence of the mother herself that X's relationship with his father, although strong, happy and successful, remains a developing one.
I am satisfied that the mother has honest reasons for wishing to move with X from Melbourne to Sydney. That is, I detected no malafides or hidden agenda in the mother's argument. I suspect, however, that there is some merit in the father's suggestion that the mother acted to put herself in something of a beneficial ‘primary parent’ position after separation in order to strengthen her position in respect of her anticipated application. Nevertheless, little or nothing sits with this evidence in circumstances where I am satisfied that, at least of late, the mother has been supportive and facilitating of X's relationship with the father.
Whilst I am satisfied as to the honesty and subjective rationale of the mother's preference to move to Sydney for reasons of family support as opposed to her feeling isolated in Melbourne, I am not so persuaded objectively on the balance of probabilities. The mother’s psychologist’s evidence was of little assistance in that she only had the mother's version of history and even that notably seemed to be incomplete. Further, whilst the mother’s extended family do live in Sydney, she herself has not lived there for any period greater than three months for many years. The mother impresses as a cosmopolitan and mature woman who has lived in various parts of the world. She has tertiary qualifications and has worked in responsible positions. I generally prefer the evidence of the father that it was the mother herself who initiated the move from Sydney to Melbourne when they had only been back in Australia for some three or so months. Both the mother’s psychologist and the mother herself indicate, in any event, that she would 'cope' if required to stay in Melbourne and from hearing her evidence in Court and my observations of the mother, I have no doubt that this is a valid conclusion. The mother’s brother gave evidence that he would support her in employment in the family business. However, doubts remain as to the same commitment of his brother and business partner, Mr H. I accept that there has been an impact on the mother’s current employment by the Covid-19 virus but she impresses me as a resourceful woman with qualifications and experience which should assist in obtaining employment.
Similarly, the evidence of the mother’s brother, Mr G, was striking in that it did not disclose what appears to be corroborative evidence of the father's claims that the mother's relationship with her own parents has not always been historically strong. Those omissions were exposed during cross-examination.
I note and take into account the mother's 'right' of freedom of movement subject of course to the best interests of X. Similarly, however, where the mother argues that Mr Dalmeda himself could move to Sydney, he enjoys similar ‘rights’.
There are positives in the mother's application to relocate with X to Sydney. Primarily, she would have the benefit of her family support both physically and emotionally. There are prospects of employment for her in the family business. Vicariously X would benefit by his mother, as his primary carer, being happier in herself and hence her parenting of him. Further, the mother is obviously altruistic in her proposals for X to maintain contact with the father. She goes to the extent of offering to vacate her own a home for one weekend per month to accommodate X and Mr Dalmeda. She will contribute to and/or travel with X to Melbourne for one weekend per month if Mr Dalmeda himself maintains that he would not move to Sydney. Generally, the relationship between Mr Dalmeda and X is relatively strong and, on the mother's argument, could endure and flourish on her proposal.
Conversely, however, there are negatives to the mother's argument which equally sit as positives for the father's proposals. Specifically, X is still a very young child. Travel for him between Sydney and Melbourne return on a four weekly basis would prove onerous. Similarly, the logistics of such travel are problematic on a cost-benefit basis as detailed in these reasons above and as noted by the family reporter. The nature of X's relationship with his father would inevitably change and become more rigid and structured without flexibility and spontaneity. At such a young age, I doubt whether a loss of frequency in time (including the prospects of increasing time) could be adequately mitigated by the use of various media. In any event, it is generally accepted that such is a poor substitute for direct contact between a child and a parent. Further, the mother’s generous offer of vacating her residence in favour of the father and X for one weekend out of each four, whilst generous, is questionable as to its longer term practical duration as is the practical viability (and utility) of her superficially generous offer to fly X to Melbourne each fourth weekend.
After consideration and reflection on what is a finely balanced determination as to X's best interests, I am persuaded that those best interests for X sit with him remaining in close proximity with both parents and hence I am not persuaded in favour of the mother's application. I have placed considerable weight on X's young age and the mother's own evidence that his relationship with Mr Dalmeda remains a 'developing' one. The potential is that father/child relationship would therefore be inhibited by a relocation and the above-mentioned logistical considerations. Further, and whilst I respect the mother's preference to move to Sydney and her personal right of freedom of movement, I am not persuaded that her claimed reasons for doing so outweigh the benefits to X in remaining proximate to his father. I repeat that the mother impresses me as a mature and worldly woman who has successfully lived independently of her parents and family for some twenty or so years. She herself concedes that she would ‘cope’ with her ambitions to move to Sydney being thwarted as does her own counsellor. This is a mother aged 39 years who has lived and worked away from Sydney and her family for most of the last 20 years. Further, and importantly, I am satisfied that, in any event, Ms McCline has had and will continue to receive support from her family. Her mother has historically travelled to Melbourne as has Ms McCline herself with X to Sydney. Further, it cannot be forgotten that the mother currently does have support in Melbourne namely from the father himself and where the family reporter observes a relationship perhaps better than most coming before these Courts.
Put simply, the same arguments that Ms McCline puts for maintaining X's relationship with the father by way of regular air travel between Melbourne and Sydney, together with the use of social media, are equally available to Ms McCline herself with her extended family.
On balance, therefore, I am not persuaded by the mother's application to move with X to Sydney as being in the child's best interests.
Ms McCline told Mr D that she was keen to foster X's relationship with his father to an extent that she claimed concern at gaps in X's direct contact with the father pursuant to then interim orders. I take this evidence as being honest and at face value but contextually harbour some concerns that X's actual time with the father does not seem to have voluntarily increased from interim orders made in early 2019. Whilst X is of such a young age and where the parties agree that his relationship with his father has not developed to the extent of the attachment he enjoys with his mother, I am not inclined in his best interest to make orders, even graduated, that provide for equal time for X between the parents. I am of the view that orders providing for substantial and significant time accommodate X's best interests, the mother's altruistic statements to Mr D, and a relationship of sufficiently high frequency of direct contact for X with his father so as to continue the development of that relationship.
There remains an issue as to the father's wish to take X on trips to Country B to visit his extended family in City C including an aged an ailing grandfather. Mr Dalmeda proposes, I think, one trip annually starting in 2020 for two weeks and increasing up to 6 weeks by 2025. The mother asks for an order restraining X from having an Country B passport. She is prima facie in support of X travelling to Country B but not until 2022 when he will be six years of age. She asks to hold X's Australian passport in circumstances where she says, and with some supporting evidence, that the father at least once threatened to remove X and did, in fact, take possession of X's Australian passport. Any concerns in this respect from the father are mitigated by such comments being made, he says, without actual intention and in the throes of heated argument at or near separation.
The consideration for the Court is two-fold. Firstly, is the travel in the terms sought in the child's best interests and, secondly, does the father represent a flight risk.
Relevantly, Country B is a signatory to the Hague Convention on child abduction. I have had the advantage of seeing and hearing Mr Dalmeda give his evidence. He impressed as an honest and child focused father. I agree with Mr D that he showed respect and consideration for the mother (which was reciprocated). I do not, on balance, consider him to be a flight risk. Nevertheless, X is still young. Both parents acknowledge his primary attachment being with his mother and X's relationship with his father being not yet fully developed. Whilst I acknowledge the father's reasons for wanting X to visit City C, namely his ageing father’s ill-health, I am not of the view that X is at yet such an age that the orders sought by the father are in his best interests. In any event, the argument might be moot given the current international travel restrictions. I am of the view that X will be of an age and sufficiently socialised so as to travel with the father to Country B in the second half of 2021 (if permitted by national travel regulations). The initial visit should be for no more than two weeks. Thereafter, I am of the view that X should be permitted visits for periods not longer than three weeks, but to occur during school holidays, and where there are reciprocal provisions for the mother to travel with X if she so desires. I reject the proposal put by the mother during cross-examination that she might be amenable to earlier travel for X to Country B provided that she also be able to travel and apparently at the expense of the father. Nevertheless, and as usual, there will be a provision in the orders for any variation of the orders or such other time as agreed between the parents from time to time. An order for block periods of three (3) weeks for X with each parent during the summer holidays will also allow the mother to travel productively to New South Wales or elsewhere with X.
I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Associate:
Date: 10 September 2020
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Jurisdiction
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Remedies
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Injunction
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Procedural Fairness
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