Danvers & Rebas
[2021] FCCA 663
•7 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Danvers & Rebas [2021] FCCA 663
File number(s): NCC 2313 of 2018 Judgment of: JUDGE MCNAB Date of judgment: 7 April 2021 Catchwords: FAMILY LAW – parenting – application for sole parental responsibility – application for the father to spend supervised spend time with the child – best interests of the child – where there is significant conflict between the parties – whether orders should be made making the father’s spend time arrangements contingent on him attending upon a psychologist (order not made). Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DAA. Number of paragraphs: 125 Date of last submission/s: 10 February 2021 Date of hearing: 4 – 5 February 2021 Place: Melbourne Solicitor for the Applicant: Hartleys Lawyers The Respondent: Appearing in Person Solicitor for the Independent Children's Lawyer: Macgregor Barristers And Solicitors ORDERS
NCC 2313 of 2018 BETWEEN: MS DANVERS
Applicant
AND: MR REBAS
Respondent
ORDER MADE BY:
JUDGE MCNAB
DATE OF ORDER:
7 APRIL 2021
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The Mother have sole parental responsibility for the child X born in 2012 (“the child”).
3.The child live with the Mother.
4.The child spend time with the Father between 9.00am and 5.00pm (or as otherwise agreed between the parties) on each third Saturday or Sunday, with:
(a)the day on which spend time is to occur to be agreed to between the parties or, failing agreement, on Sunday; and
(b)changeover to occur at City B Police Station.
5.If the Father relocates to reside in the metropolitan Melbourne area, the changeover location be agreed between the parties in writing.
6.The Father’s time be suspended and the child remain with the Mother as follows:
(a)on the Mother’s birthday, if her birthday falls on the weekend with the scheduled visit, and the visit be rescheduled to the following weekend;
(b)on Mother’s Day, if Mother’s Day falls on the weekend with the scheduled visit, and the visit be rescheduled to the following weekend; and
(c)at such further or other times as may be agreed between the parties in writing.
7.The Father communicate with the child, by telephone or Skype (or such other communication forum as agreed between the parties) between 6.15pm and 6.45pm, and finishing at 6.45pm, each Monday and Thursday, or otherwise agreed between the parties, with the Father to place the call to the Mother’s phone/computer and for the Mother to facilitate that communication between the Father and the child.
8.The Mother inform the Father of all decisions in relations to the child’s health and education.
9.The Father be permitted to receive copies of all school reports and all other material normally provided to parents of students, at his expense, and that he be entitled to obtain access to the school portal, at the school attended by the child with the Father to provide a copy of these Orders to the child’s school as authority for obtaining such reports and material.
10.The parties be at liberty to attend any school or extra-curricular activity to which parents are ordinarily invited, including but not limited to school events, school concerts, sporting events and parent teacher interviews regardless of whether the child is in the other’s care and can utilise these orders as authority for such attendance.
11.The parties be permitted to liaise with the child’s medical practitioners to obtain information about the child’s medical care and to obtain copies of any relevant documents at their own expense and can utilise these orders as authority for that purpose.
12.The parties communicate with each other in relation to the child via email (or such other communication forum as agreed), save and except for time sensitive or urgent matters in which the parties are at liberty to communicate by SMS text message or telephone communication and that all communication be solely in relation to the child.
Restraints
13.The Father be restrained from:
(a)changing the child’s appearance, including hair and clothing choices whilst the child is in the Father’s care; and
(b)taking the child to any hospital or medical practitioners whilst the child is in the Father’s care without prior written consent of the Mother, and in the case of an emergency, the Father notify the Mother of the emergency prior to attending a hospital or medical practitioner or when reasonably practicable after attending the hospital or medical centre.
14.Without admitting the necessity for the same, the parties, their servants and agents be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking, intimidating, harassing or otherwise denigrating the other parent to or in the presence or hearing of the child or any of them and permitting any other person to so;
(b)passing messages through the child to the other parent;
(c)discussing parenting disputes and/or issues with or in the presence of the child or any of them and permitting any other person to do so;
(d)exposing the child to any conflict between the parties and their families and permitting any other person to do so;
(e)using physical punishment to discipline the child;
(f)discussing the court proceedings, including any ancillary proceedings, with or in the presence or hearing of the child or any of them and permitting any other person to do so; and
(g)allowing the child to have access to any documents relating to the parties separation and/or Court proceedings including any ancillary proceedings.
Psychological Treatment
15.The child attend upon a counsellor, as agreed between the parties and the Independent Children’s Lawyer, to assist her in dealing with issues relating to the separation of her parents and future parenting arrangements, with the parties to each meet half of the costs of such counselling and it is requested that the treating counsellor liaise with each of the parties and the Independent Children’s Lawyer from time to time.
16.The Father and Mother be permitted to provide copies of these reasons for Judgment, the family reports and Department of Health and Human Services reports to any counsellor engaged by them for their own benefit or for the benefit of the child.
Travel
17.If the Mother intends to travel with the child, she is to notify and provide to the Father no later than 60 days for international travel, or as soon as practicable if within this timeframe, prior to the intended date of departure, with written confirmation of the following:
(a)the countries to which the child will travel and with whom the child will travel with together with an itinerary including the airline; and
(b)the date upon which the child will depart from and return to Victoria; and
(c)the addresses, and accommodation bookings, at which the child shall reside and a telephone number on which the other party can communicate with the child during the travel period;
(d)in the event that travel is to take place at a time when the child would normally be with the other party a proposal for make-up time equivalent to the time lost, unless otherwise agreed, between the child and the other party;
(e)a proposal for telephone time for the non-travelling parent and the child during the holiday; and
(f)a proposal of how the child will maintain their school work if required whilst on holidays and proof of discussions with school about same.
18.Pursuant to section 11 of the Australian Passports Act 2005 (Cth) the Minister issue and/or renew the Australian Passport for the child from the relevant Commonwealth department without the necessity of obtaining the consent of the Father.
19.The child’s identification documents including their passports will remain in the Mother’s possession at all times unless required for travel by the Father in the future.
20.Prior to any further parenting application being issued, the parties must engage in Alternative Dispute Resolution through Relationships Australia or a similar provider of such services.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Danvers & Rebas is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge McNab:
INTRODUCTION
In this matter, the Father is 66 years old and is an artist/pensioner. The Mother is 29 years old and works full-time in an office. The parties met when the Father was approximately 58 years old and the Mother was 20 years old.
In late 2011, the parties commenced their relationship and began cohabitation a short time after in Melbourne, Victoria.
In 2012, the child X was born.
In or around April 2018, the parties separated. At that time they were living in Suburb C, New South Wales. The Father relocated to Adelaide to live with his family immediately after separation. The Mother relocated to Melbourne in late December 2018.
In July 2019, the Father relocated to a residence in Town D, Victoria.
The Father and Mother have both re-partnered since separation.
BACKGROUND
Prior to the commencement of proceedings, the child was living with the Mother post-separation in NSW. In July 2018, the Father presented at the child’s school, collected the child without the Mother’s knowledge or consent, and travelled with her to Adelaide.
The Mother initiated the current proceedings in NSW on 31 July 2018, seeking an urgent recovery order and further parenting orders.
On 6 August 2018, orders were made for the child to be returned to the Mother and for the child to live with the Mother. The Father was restrained from being within 100 metres of the child’s school or the Mother’s residence. The matter was also listed for hearing on 2 October 2018.
On 2 October 2018, further orders were made for the Mother to have sole parental responsibility for the child in determining where the child lives and which school she was to attend. The matter was listed for Mention in Melbourne on 29 January 2019.
On 1 February 2019, the Independent Children’s Lawyer was appointed and the matter was adjourned to 9 May 2019.
On 9 May 2019, orders were made by consent for the child to spend time with the Father, effectively on the last weekend of every month and for half of all school holidays. Further orders were also made for communication time between the child and the Father. The matter was listed for Final Hearing on 11 December 2019.
On 11 December 2019, a s67Z report was released recommending the Father have professionally supervised time with the child. The proceedings were adjourned to 23 December 2019 and 28 January 2020 for Mention.
On 23 December 2019, orders were made by consent for the child to have limited supervised daytime spend time with the Father. The Father’s time was to be supervised by Ms E or such other agreed person.
On 28 January 2020, orders were made by consent for the Father to have spend time with the child for a two hour period once per fortnight. Orders were also made for the Father to attend counselling as directed by the Independent Children’s Lawyer and for the parties to enrol in a contact centre for the purposes of the Father’s time been supervised. The matter was also adjourned to 4 May 2020.
On 4 May 2020, orders were made for the Father to have limited supervised spend time with the child for four two-hour sessions on a Saturday and Sunday, with those sessions to be scheduled at least one month apart. The matter was also listed for Final Hearing on 4 February 2021 with an estimated hearing time of two days.
On 21 August 2020, order were made for the gradual increase in time between the Father and the child, with time increasing from four hours each alternate weekend to eight hours each alternate weekend.
The matter was heard on 4 February 2021 and 5 February 2021. The Mother and Independent Children’s Lawyer had Counsel appear on their behalf, while the Father appeared self-represented. Judgment was reserved at the conclusion of the hearing.
FINAL ORDERS SOUGHT
At the conclusion of the Final Hearing, orders were made for each party to file and serve:
(1)a minute of final orders that they seek; and
(2)an outline of submissions limited to five A4 pages addressing s60CC(3) of the Family Law Act 1975 (Cth) (“the Act”).
Both the Mother and the Father filed a minute of orders sought and an outline of submissions on 10 February 2021. The Independent Children’s Lawyer sought to rely on a case summary document filed with the Court prior to the Final Hearing on 3 February 2021. The Court has regard to the submissions and minutes of proposed orders.
The Mother’s Proposed Orders
By way of the minute of proposed orders provided to the Court, the Mother seeks orders that she have sole parental responsibility for the child and for the child to live with her. The Mother seeks orders that the Father spend supervised time with the child once every six weeks at times and dates as agreed between the parties, and failing agreement, on Sunday from 12.00pm to 3.00pm. The Mother seeks orders that if the Father relocates to Melbourne, that the Father’s spend time occur once every three weeks. Such time is to be suspended on the Mother’s birthday, Mother’s Day and at such further times as agreed between the parties in writing. The Mother also seeks orders that the child communicate with the Father by telephone or Skype from 6.15pm to 6.45pm each Monday and Thursday.
The Mother seeks orders that the Father not be able to change the child’s appearance, being the child’s hair or clothing, whilst in the Father’s care.
Further, the Mother seeks that if she intends to travel, whether domestically or internationally, that she provide the Father with 60 days’ notice, with the Mother to provide a proposal for make-up time for spend time lost by the Father.
The Mother also seeks that the Father engage with a psychologist nominated by the Independent Childrens’ Lawyer for the purposes of addressing “the Father’s insight into his behaviour and beliefs and the effect of such behaviour upon others”.
The Father’s Proposed Orders
By way of the minute of proposed orders provide to the Court, the Father seeks orders that the parties have equal shared responsibility for the child. The Father seeks further orders for him to spend unsupervised time with the child:
(3)every third weekend, from the conclusion of school on Friday (or 3.30pm if not a school day) until 4.30pm on Sunday; and
(4)half of all school holidays.
The Father also seeks that he have video communication with the child once a week on a Sunday night so as to say goodnight to the child.
The Father seeks orders that he enrol in counselling so to “assist with enhanced communication skills to facilitate a positive and respectful co-parenting relationship”. The Father also seeks that the Mother commence a mental health care plan for the child and enrol the child in counselling. In submissions that were sent to the Court on 10 March 2021, after the time for filing submissions had closed, the Father submitted that the child should be in his fulltime care.
The Independent Children’s Lawyer’s Proposed Orders
By way of a case summary document filed on 3 February 2021, the Independent Children’s Lawyer seeks that all previous parenting orders for the Father to spend time with the child be suspended and that the Father spend supervised time with the child at a contact centre (pursuant to Order 4 of the orders made on 28 January 2020). No further particulars as to the amount of spend time were provided in the summary document. The Independent Children’s Lawyer sought orders that the Court consider whether the matter should be transferred to the Family Court of Australia and that otherwise the matter be adjourned for a Final Hearing of three to four days at some time in the future.
The Independent Children’s Lawyer also seeks that the parties comply with:
(1)order 1 of the orders made on 28 January 2020, being that the Father engage with a qualified therapist for reportable counselling as directed by the Independent Children’s Lawyer; and
(2)order 5 of the orders made on 21 August 2020, being that the child attend counselling relating to the separation of the parties and future parenting arrangements.
By way of email correspondence with the Court on 12 February 2021 in relation to the orders made at the conclusion of the final hearing, the Independent Children’s Lawyer indicated that she sought to continue to rely on the case summary document.
THE EVIDENCE
When regard is had to the three family reports that have been obtained in this matter, as well as the number of Court events, this is a matter of considerable complexity. That complexity arises particularly because of the Father’s inability to shield the child from his animosity toward the Mother, and his belief that the Mother does not parent the child appropriately or adequately.
From the Father’s perspective, he feels that the perception of him raised in the family reports produced during the course of these proceedings, and carried on by the Mother and the Independent Childrens’ Lawyer, originate in a negative characterisation of him in a s67Z report. That s67Z report, dated 1 November 2019, was prepared by a child protection practitioner from the Department of Health and Human Services, now the Department of Families, Fairness and Housing (“the DFFH”) (“the s67Z report”).
The s67Z report was prepared in response to a Notice of Risk filed by the Mother on 21 September 2019. The s67Z report sets out various allegations regarding controlling behaviour engaged in by the Father, which the Father denies. These include allegations that the Father isolated the Mother from family and friends during the course of the relationship, did not allow her to work, did not allow her to have a mobile phone, restricted her access to transport and accused her of being unfaithful during the relationship. The s67Z report referred to allegations of emotional and financial abuse, but not physical abuse. The s67Z report noted the 37 year age difference between the parties, and concerns that the Father had targeted a vulnerable person at the beginning of the relationship, as the Mother was approximately 20 years old at that time.
In interviews with the Father on 31 October 2019, which informed the writer of the s67Z report, the Father raised concerns about the Mother’s care of the child, claiming that the child was “dumped with random people who [the child] doesn’t know, who don’t speak English and are alcoholics”. It was said by the Father that, whilst in the care of the Mother, the child was left alone in the Mother’s house with “a TV and a cat”. The s67Z report also sets out allegations made by the Father that the Mother is being manipulated by a former partner of the Father, who he describes as a dangerous and manipulative person. Allegations of this kind were reiterated at some length by the Father in the course of the Final Hearing.
In relation to an allegation that he had abducted the child from her school in 2018, the Father stated “he didn’t do anything wrong as there were no orders” and explained that he attended the child’s school “to get information from [the Mother]”, saw the child at a school crossing, and “she jumped in my car and begged me not to take her back to her mother”. The s67Z report sets out an explanation the Father gave to the child, who was seven years old at the time, about the family situation and that he had “told her a story like little red riding hood, where the wolf doesn’t want daddy coming to the house anymore and she told the chief wolf lies who stopped daddy from coming home”.
The s67Z report writer made an assessment on the basis that the Father had acknowledged that he had provided the child with explanations that vilified the Mother, and the child had been given a significantly skewed perception of the familial situation at the time, which resulted in the child supporting the Father.
The s67Z report recommended that the Father’s time with the child be professionally supervised in order to ensure “[the Father] is unable to further perpetrate subversive control and manipulation of [the child] during this contact”.
The Father regards the 67Z report as the progenitor of a negative perception towards him, which has resulted in him having to spend supervised time with the child at various times throughout the proceedings.
After reading all of the affidavit material relied on, as well as hearing the oral evidence given by the Mother and Father at the Final Hearing, together with the evidence of the family consultant, I am of the view that the concerns raised by the s67Z report writer were not misplaced or exaggerated and that, over the course of the proceedings, the Father has lacked insight into his behaviour. His negative attitude toward the Mother has a strong tendency to undermine the child’s relationship with the Mother. Ultimately, I find that the orders sought by the Mother and, to a degree, the Independent Children’s Lawyer, subject to modification, are appropriate and in the best interest of the child, for the reasons set out below.
The evidence supports a finding that the child enjoys spending time with the Father. I note that the Father is not an alcoholic or drug addict, and he has the capacity to engage with the child, to explore theatre, music and the arts. He does not present as a physical threat to the child.
The Mother’s Evidence
The Mother relied on the affidavits filed by her in these proceedings, but most relevantly a trial affidavit filed on 1 February 2021. In summary, the Mother gave evidence that:
(1)the child has not spent time with the Father since December 2020, on the basis that the Mother felt that she had no choice but to suspend time between the child and the Father to protect the child’s wellbeing;
(2)the child has remained living with the Mother in a two-bedroom apartment in Melbourne, with the child having her own bedroom; and
(3)the Mother supports the child through allowances that she received from Centrelink and through income received through full-time employment at an office, employment which she obtained on 7 January 2021. She notes that the Father does not pay child support, notwithstanding that he described himself to the family consultant as a ‘Manager’ of an arts company.
The Mother is currently completing a Bachelor’s Degree, intends to complete a Master’s Degree, and hopes to find employment as a health care worker.
In relation to the child’s health, the Mother gave evidence that the child has been in her primary care since birth, the child is in good health and is meeting all usual developmental milestones. The chid is currently low in iron, and is taking an iron supplement to address this issue. The child is on a waiting list to see a child psychologist, and it is not clear when the child is expected to commence her sessions. The arrangements were made for that counselling to take place by orders made on 21 August 2020.
In her trial affidavit, the Mother describes the child as a person who thrives on routine and that routine is provided for in the Mother’s household. The child is also provided with a range of clothing and is dressed appropriately for Melbourne weather, with the child enjoying having input into clothing choices when she is not at school. The child is described as being taught responsibility and is assisting around the home by doing chores, including making her bed and learning to make her own breakfast. On the Mother’s evidence, the child is an independent individual who is enjoying learning new tasks.
In terms of education, the child is currently in year three at the local primary school. She is progressing well at school and the Mother intends for the child to commence before and after school care when the school year returns, given that she is working full-time.
The Court notes that there has been no issue raised in relation to the child’s health or presentation by any school or medical practitioner. Apart from the s67Z report referred to earlier, there has been no involvement by DFFH in relation to the Mother’s care of the child.
In relation to recent circumstances, the Mother gave evidence that, after orders were made on 21 August 2020, the Father progressed from four hour visits on either Saturday and Sunday each alternative weekend to eight hour visits on either a Saturday or Sunday. The time usually occurred on a Sunday, with the time taking place in City B and with the changeover occurring at City B police station.
The Mother gave evidence that after a request was made by the Father’s solicitors for the Mother’s residential and contact details (in accordance with order 4 of the orders made on 21 August 2020), the Mother’s residential address was provided on 3 September 2020. On 14 September 2020, a package, which was addressed to the child, was sent by the Father to the Mother’s residence. Whilst there was no issue with the fact that the Father had written a letter enclosing a teddy bear to the child, the Mother was concerned that the letter was not on a special occasion and was in breach of an intervention order that was obtained in favour of the Mother in or around August 2019.
The Mother gave evidence that after the child spent time with the Father, she would return home and make what is referred to as ‘unusual comments’. Included amongst those comments was that, after a visit on 20 September 2020, the child asked questions as to how the times were set in relation to the child’s spend time with the Father. The child told the Mother that the Father had told the child that the Mother was in charge of setting the child’s spend time with the Father.
Most concerning is evidence given by the Mother that on 29 November 2020, the Father took the child to a doctor for a blood test without the Mother’s knowledge. The child returned home on that day and told the Mother that the Father had taken her to the doctor, and that the doctor had taken a blood sample. The child showed the Mother her arm, which had an injection site covered by a cotton ball. The Mother sought an explanation from the Father by her solicitor, but no response was received from the Father’s solicitor. The Mother then obtained the details of the treatment received by the child via Medicare. The Mother obtained information that a blood test was performed on the child and that the results showed the child was low in iron. The child was prescribed an iron supplement, which the Mother has been administering to the child, but notes that the Father had not left any contact details with the doctor listing her as a an emergency contact, nor did the Father inform the Mother of the results of the test.
At [43] of the Mother’s affidavit, the Mother gives evidence that the Father took photos of the child’s hands, sent a photo to a friend of the Mother, with a message stating “these are [the child’s] hands, she is being totally neglected, she cooks her own food washes her own clothes, she smells and she is filthy, I took her to the doctor who diagnosed IDA, Iron deficiency Anaemia, from lack of real food, and worst of all [the child] thinks this is normal, you must help me help her”: see also Court book at [45].
On 13 December 2020, the Father took the child to a further medial appointment and had the child tested for COVID-19. The Father took the child to the doctor without the Mother’s knowledge. The Mother received a call from the child’s school the next day requesting that the child be collected, as the Father had called the school and informed them that the child had received a COVID-19 test, and should not be at school. The child was at home for two days waiting for her results.
The Father did not provide the Mother with the results of the COVID-19 test despite knowing that the child was required to remain at home until the results were received. The Mother had to call the relevant medical centre and request copies of the results for the school.
The Mother referred to evidence in the updated family report dated 17 December 2020, where the family consultant asked the Father about the fact that he had not informed the Mother about taking the child to a medical general practitioner on two occasions. The family report states at [67]:
67. Directly asked, Mr Rebas advised that he has not informed [the Mother] about taking [the child] to a GP on two occasions, nor that a Doctor has identified that [the child] reportedly has an iron deficiency. He reports that he is waiting to receive the results from the full blood test which he then intends to then send to his Solicitor and Child Protection. He reports being considered and cautious about what he does explaining, ‘anything I do, I’m accused of being a menace. Everything in this case, I’ve taken the moral high ground’.
The Mother gave evidence that she saw that Father was using the child’s attendances at a medical centre as a means of accumulating information to be sent to the DFFH in an attempt to show that the child was at risk whilst in her care. The Mother also gives evidence that the Father had disclosed to the child that the daughter of a close family friend had committed suicide, because the father of the child had not been “very nice to her”. That was said in circumstances where the child had a close relationship with the father of the child who took her own life: see Mother’s affidavit at [49].
The Mother also reported that the child would return from spending time with the Father, and would have behavioural issues, including increased defiance and aggressiveness, as well as hitting the Mother.
The Mother gave evidence that she suspended the Father’s time with the child from 22 December 2020 and, through her solicitors, sought an undertaking from the Father that he would not:
(1)engage in inappropriate behaviour,
(2)discuss inappropriate matters with the child; and
(3)take the child to unnecessary medical appointments.
The Father did not provide such an undertaking to the Mother.
On 5 January 2021, the Independent Children’s Lawyer sent a letter to the Father’s solicitors recommending that the Father only spend supervised time with the child. The Mother gave evidence that there was no response to that correspondence: see Mother’s affidavit at [56].
The Mother’s presentation in oral evidence, was sensible, notwithstanding that she was cross-examined by the Father, given that there was no prohibition on him so doing. Her responses were measured and she gave the overwhelming impression of a person who is being worn down by the litigation, whilst also having to deal with the Father who seems intent on undermining her relationship with the child.
The Father’s Evidence
The Father relied upon his various affidavits filed during these proceedings and particularly his trial affidavit filed on 1 February 2021. By that affidavit he describes himself as an artist in residence and drama educator at a studio in Town D. In earlier affidavits he describes in detail his experience and accomplishments as an actor.
In the course of his evidence the Father describes himself as unemployed and referred to that circumstance when addressing the difficulties of paying for any supervised time with the child and the cost of travel to see her.
I also have regard to the earlier affidavit evidence of the Father filed in these proceedings, as that evidence has been referred to in the family reports. Throughout his affidavit material the Father is critical of the Mother's parenting capacity and her capacity generally. He also takes issue with the recommendations in each of the family reports. He emphasises the statements made by the child, which are set out in the family report dated 4 November 2019, where the child expressed her wishes to spend more time with the Father.
As noted above, the Father sees the narrative as set out in the family reports, as a cascading series of misrepresentations which have effectively commenced in the s67Z report. By his trial affidavit the Father gives evidence of why he disputes the findings in the s67Z report. In particular he disputes the notion that he was controlling, that he took advantage of a vulnerable young person or that there was any issue with his own capacity as a parent. At [48] of the trial affidavit, the Father makes reference to the Mother's then partner and states that he “…has respect for [name] accepting parental responsibility for my daughter while in the co-care with [the Mother]".
Whilst his evidence in relation to the Mother’s partner given by way of his trial affidavit is reasonably measured, this is contrast with his evidence in an affidavit filed on 6 May 2019, whilst he was instructing Elisa Rothschild Lawyers, where the Father expressed the view at [11] – [13] that:
11. The Respondent lives in a relationship with another man and often gets other people to look after [the child] as the Respondent is now working full time.
12. The comments [the child] has made regarding the Respondents’ partner have caused me great concern about her safety and welfare now and in the long term. [The child] has referred on occasion to the genitalia of the Respondents partner as “the one-eyed monster”.
13. [The child] has the appearance of being undernourished and diminutive for her age and seems to have no practical clothing.
14. [The child] appears to have only one pair of shoes, and I have smelt cat urine on her person and clothing. I have often seen [the child] in clothing that are two sizes too big which causes her discomfort and restricts her ability to run and play properly. I now bring shoes for her to wear.
At [38] the Father further states:
38. I am very concerned that the mother may be planning to relocate overseas with [the child]. I am also concerned that [the child] is neglected and that she is left with a variety of different people.
In his oral evidence the Father made a claim that the Mother did not care for the child and effectively left the child to cook and clean for herself. The Father made reference in his oral evidence that the child had claimed to him that she washes her own clothes, which he said that he knew was false, yet in the text message to the Mother’s friend, the Father refers to the child washing her own clothes and cooking her own food.
In his evidence before the Court the Father claimed that, prior to meeting her, the Mother had worked as a prostitute and was a drug addict, allegations that the Mother specifically denied and which the Father provided no proof of. He mad this allegation for the purpose of upsetting the Mother.
In the Father’s oral evidence, the Father denied that he had made the comments attributed to him in the family report as a reason for sending the child for medical examinations.
In submissions that were sent to the Court on 10 March 2021, after the time for filing submissions had closed (reference to which I make because the submissions are not detrimental to the Mother’s position), the Father, amongst other things, states:
From my observations now, the relationship between the mother and the child is one of bullying, intimidation and disrespect. As expressed to me by the child, she lives in fear and is continually punished for talking about or mentioning her father. The child has mentioned to me that she is treated like a slave, does everything herself and is continually shouted at and not listened to when she tries to talk, she has also mentioned that she feels alone especially since the mother’s partner, [name] has left.
The child’s health, hygiene and nutrition have been severely neglected and she has been denied any emotional support which has affected the relationship between the mother and the child. The child has expressed that the mother does not let her have her own thoughts and that she doesn’t want her to be like her father, but like her mother. The child spends long days at school and OSHC, she gets there early and is picked up late. The child tells me she rarely has a cooked meal and often makes her own food, which consists of whatever she can find in the kitchen this is usually two minute noodles. On the weekends she is usually left with a baby sitter and gets to spend minimal time with her mother.
…
I strongly believe that to leave the child in the care of the mother will cause major long-term problems for our daughter and I’m more than willing and capable to have her in my care full time.
This commentary is perhaps the most clearly stated expression of the Father’s views in relation to the Mother. There has been no report from any agency or any concern raised by the child’s school or medical practitioners that the child is severely neglected or neglected at all. I also note that the Father had sought orders at the Final hearing the child live with him on a full time basis.
The Family Consultant
In giving evidence, the family consultant referred to her notes and I find that they were an accurate reference for the purposes of compiling the family report. As noted above there are three family reports in this proceeding – dated 4 November 2019, 20 January 2020 and 17 December 2020 – each prepared by family consultant Ms F. The family consultant gave evidence before the Court and was cross-examined by the parties. The family report dated 4 November 2019 presents as a very detailed summary of the accounts provided by each of the parties to the family consultant. In my view, the family consultant provides a balanced account of what was a relatively complex set of circumstances thrown up by the parties.
At [95] – [96] the family consultant stated that:
95. [The Father] reports holding a number of worries for [the child]. He juxtaposes his worries with strong inference that his increasing age increases his limitation in fulfilling a primary parenting role of her, except in a case of pure necessity. Perusal of his worries, assessment of [the Mother] and, [the child’s] discussions did not indicate that [the child’s] care experiences with [the Mother] are inadequate, incompetent or pose significant risk of harm.
96. [The Father’s] difficulty containing his worries and opinions from [the child], however, is identified as directly contributing to [the child’s] difficulties adjusting to the parental separation as well as supporting her to enjoy an independent, positive relationship with both parents. [The Father’s] worries about [the Father’s former partner] exist in this area, so too his views about [the Mother] ending the adult relationship and asking him to leave, as well as details about adult financial matters. Whilst it is not to exclude that [the Mother] has also not contributed to [the child] being aware of some adult information, [the child’s] discussions offered clearer correlation of her information from [the Father], with there being limited, if any, examples regarding any role [the Mother] takes in this experience.
At [99] – [101] the family consultant stated that:
99. Following a separation, a child requires the opportunity to feel supported and safe to transition through their grief. Receiving consistent messages from both parents that they are loved, that they did not cause the separation and, that the parents discord does not shape how they see the child are core needs to assist with a child’s healthy adjustment to the separation. It is assessed that [the child’s] opportunities for her parents to support her grief and to separate their own from this remains compromised. If this continues, there is a growing risk that her own emotional and mental health will suffer as she ages, and her risk of mental illness increases. If not already completed, the use of a Post Separation Parenting Program may assist in this regard. Additionally, it is likely to be of great value to [the child] for her to access an independent counsellor, specialised in working with separated families.
100. It is assessed that [the child’s] current primary care arrangement is consistent with her needs and ongoing best interests. [The Mother] presents as being aware of the responsibilities associated with parenthood and creating a home environment for [the child] which aligns with her developmental needs. Her proposal to continue fulfilling [the child’s] role as primary parent is assessed as being consistent with [the child’s] best interests.
101. It is assessed that supporting [the child] to maintain a relationship with [the Father] is important for her sense of belonging. A frequency of this time occurring each third week, rather than monthly as proposed by the mother or fortnightly as proposed by the father is assessed as affording [the child] the balance of strengths and risks inherent in her relationship with [the Father]. Affording her this increased frequency will support [the child] to feel more valued and connected to both parents in the context of the separation and her views to spend more time with her father. Managing the burden of her travel to facilitate this time and [the Father’s] difficulties keeping his relationship with [the child] child-focused and facilitative of her individual exploration of her identity primarily underpins the recommendation of a three-weekly cycle rather than a fortnightly arrangement.
After the release of the family report, the parties attended a Family Dispute Resolution Service with the intention of resolving the matters on a final basis. On 11 December 2019, the matter was listed for final hearing before Judge Stewart at which point, the s67Z report was released recommending that the Father have professionally supervised time with the child. The Final Hearing did not proceed and the matter was adjourned for Mention. The matter came back before the Court for Mention on 23 December 2020 and orders were made by consent for the Father to spend time with the child for daytime visits only, supervised by the Mother's friend and there was an order made for an addendum to the family report to be completed.
That addendum report was prepared by the family consultant and is dated 20 January 2020. At [4] – [5] of that report the family consultant stated:
4. The additional information elicited from the DHHS assessment provides further information in relation to [the child's] exposure to [the Father's] negative views about her mother. Notably, across both assessments, [the Father] presents with a negative schema relating to his attitude and views about [the child’s] mother. Furthermore, his insight, acknowledgement and motivation to ensure his personal views are not shared with [the child] appear low. Consequently, it is likely that any substantial behavioural change within the foreseeable future from [the Father] is likely to be minimal and his capacity to change without professional therapeutic intervention is also likely to be extremely limited.
5. The concurrent assessments of the DHHS and the initial Family Report may lead to the Court determining that there is now information from more than one assessment which identifies that [the child's] emotional wellbeing is at risk in [the Father's] care unless he makes a significant change.
The family consultant made recommendations supported by her analysis at [10], that:
(1)the Father engage with a qualified therapist who has experience working with separated families,
(2)a copy the s67Z report, the first family report, and this addendum be provided as the terms of the referral;
(3)the Father’s engagement in counselling be reportable and reference was made to a qualified therapist;
(4)the Court consider reducing the child's time with the Father whilst this therapy commences and continues, unless otherwise assessed.
An updated family report was provided and is dated 17 December 2020. That report makes reference to the psychological testing conducted by Mr G. The family consultant noted at [45] that:
[The Father] reports that he has seen three Psychologists to date and completed a men’s behavioural change program. He reports that his counsellor was disregarded in the court process advising that it was suggested that due to the counsellors horror about what he heard, they were deemed to have become his advocate rather than his counsellor. [The Father] has no current therapy or formal engagement with mental health clinicians. He reports that many of the participants in the art classes where he works and lives are Psychologists.
The family consultant goes on to note at [46] that, when asking the Father about whether he felt that he had any benefits as a result of his engagement in the men's behavioural change program, his response was "Look, I did. I didn't quite understand what family violence was or its forms. If I hadn't done the course, I wouldn't see what Ms Danvers is doing. She’s controlling [the child] and her thoughts. Now I can see family violence in [the child's] family home". The Father further stated "I was in a room with 24 convicted felons; they look down on me because I had no story. I was only there because of a court order because of what [the Mother] had said. I never perpetuated any family violence to [the Mother] or [the child], ever. Family violence was perpetrated against me. I was manipulated and controlled and I still am with the way I am being controlled".
The family consultant went to great lengths to set out the comments made by the parties to her, and I am satisfied, having seen the family consultant cross-examined about the nature and accuracy of the comments noted in the report, they are an accurate statement of what she was told by each of the parties.
At [86], in the part of the report dealing with evaluation, the family consultant stated:
Perusal of [the Father’s] narrative identifies an ongoing theme regarding a negative schema regarding [the Mother] and her competency to meet [the child's] parenting needs. His narrative suggests that he has developed and sustained some fixed thoughts about [the Mother's] own childhood experiences and the consequential influences of this on her parenting and, that he now considers that her parental capacity is minimal at best. Coming from this position, [the Father's] ability to consider alternative viewpoints or situations is limited, and consequently, any parenting experience [the child] has in her mother's care, even in the benign context, is being escalated in [the Father’s] perspective by this negatively formed lens.
The family consultant notes at [87] that “[the Father] continues to uphold a sustained difficulty accepting that [the child] is not at risk in her mother’s care.”
At [92], the family consultant expressed the view that, given the lack of functional co-parenting arrangements, it was likely to be in the child's best interests that parental responsibility be solely held by the parent she primarily lives with. The family consultant notes at [93] that “[the child's] existing primary care arrangement with [the Mother] is consistent with her needs and ongoing best interests”. At [94] the family consultant express the view that:
…supporting [the child] to maintain a relationship with [the Father] is also important for her sense of belonging. This updated assessment however identifies that risk factors continue to exist and appear to have escalated throughout the adjournment period in relation to [the Father’s] schema about [the child’s] mother as well as regarding his difficulties containing his views from [the child].
In relation to the Father’s schema about the Mother, as well as regarding his difficulties containing his views from the child, the family consultant stated that “it is assessed that [the child's] emotional and mental health is at risk should [the Father’s] behaviour, views and communication remain on this current trajectory.” The Court takes the reference to ‘this current trajectory’ to be the trajectory revealed in the statements of the Father set out in the family report, and the Father’s self-reported statements in relation to his discussions with the child.
The family consultant recommended at [96] that:
(1)the Mother solely hold the child's parental responsibility;
(2)the child lives with the Mother;
(3)the child spends time with the Father no more frequently than eight hours on one day each third Saturday or Sunday, or less frequently if determined more suitable by the Court; and
(4)the child engage with a mental health practitioner who can provided her with support around her emotional health and family relationships.
The family consultant gave oral evidence before the Court, and in particular stated that the Father was focused on expressing opinions about the Mother's past. She expressed the view that, as the child was at a developmental stage, she was subject to influence and that the child relied upon both parents to guide her.
The family consultant made an assessment that the Father’s focus, or rigidity of thinking, undermines the child's capacity to form her own views, and therefore relationships. The family consultant made reference to long-term and entrenched behaviours, as well as rigid thinking on behalf the Father.
CONSIDERATION
The orders proposed by the Applicant, and apparently supported by the Independent Children's Lawyer, (I use the expression ‘apparently’ because the Independent Children’s Lawyer surprisingly and unhelpfully did not file any final submissions to assist the Court), proposes that the Mother have sole parental responsibility of the child and that the Father have supervised spend time from 12.00pm until 3.00pm every six weeks. That spend time is to be supervised through a contact service in City B.
In my view, the Father is very rigid in his thinking, and it is quite apparent that he has gained nothing from the insights that could have been gained from the family reports which were there for his assistance. However, the concern is that the arrangements proposed for the child to have ongoing supervised time with the Father, when he does not pose a physical risk, is likely to exacerbate the tension and conflict between the parties. This increases the risk of ongoing legal proceedings between the parties is not in the best interests of the child or the parties.
I did consider making orders that the Father attend upon a psychologist nominated by the Independent Children’s Lawyer and for that attendance (and the following of recommendations from that psychologist), to be a mandatory pre-requisite to the Father spending time with the child. The difficulty with orders of that kind is that they require the ongoing supervision by the Court and I have real doubts that the Father has the capacity to modify his behaviour, such that he will not present a risk to the child’s wellbeing if he spends extended time with her. Orders had been made by the Court on 28 January 2020 for the Father to attend counselling. That counselling seems to have had no effect, indeed the Father chose to use his attendance at the men’s behaviour change course as a means of identifying that he had been a victim of family violence.
The Father is now 67 years old and appears to be set in his views on a range of subjects, in particular in relation to the capacity of the Mother. He has previously engaged with a psychologist and that has not assisted him, in the sense that it has not led to a modification of his behaviour or provided insights into how to manage his relationship with the Mother and the child. I accept the evidence of the family consultant given at trial that whilst therapy may assist the Father, given his entrenched views, therapeutic psychological treatment is unlikely to change his conduct for a significant period of time or at all.
The spend time arrangements provided by these orders is limited and I do not believe that there is a significant risk to the child of being detrimentally affected by the Father’s attitude during that time. I reach that conclusion on the assumption that all of the restraints contained in the orders, in particular restraints upon the Father denigrating the Mother, taking the child for medical appointments without the Mother’s knowledge and changing the child’s appearance, will be strictly adhered to. I do not believe that further extended periods of time, including overnight time, whether supervised or unsupervised, are appropriate at this time.
The Father must understand, having read the material, that he cannot discuss these proceedings with the child and use the time he has with the child as an opportunity to express his negative views about the Mother, as well as his own grievances about the situation he now finds himself in. If the Father wishes to spend more time with the child, by reason of further orders of the Court, I suggest that he would have to demonstrate over a period of time of at least 12 months, that he has not breached these orders, and engaged in counselling by way of therapeutic psychological treatment. For the purposes of engaging in therapeutic counselling, the Father shall be authorised to provide copies of these reasons, the family reports and the DFFH material to the person or persons conducting that counselling. In my view, the only counselling or therapeutic process that might genuinely assist the Father is one that he engages in outside a Court ordered procedure.
Of course, the parties can also reach their own agreements for the Father to spend time with the child.
Equal Shared Parental Responsibility
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 is true when the Court is making interim orders, unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
However, s61DA(2) of the act provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
The presumption may also be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child or the child's parents to have equal shared parental responsibility for the child.
This is a case where the presumption of equal shared parental responsibility is displaced. In my view it is in the child’s best interests that parental responsibility reside solely with the Mother. The level of conflict between the parties is such that I am of the view that the parties do not have the capacity to cooperate to the extent necessary to enable equal shared parental responsibility for the benefit of the child. In the course of the hearing the Father expressed the view that he was happy for the mother have sole parental responsibility. By way of seeking to assist the Mother, I sought to summarise the Father’s position as being that the Father was happy for the Mother to make all major decisions, but the Mother was to inform the Father of all decisions made along the way in relation to health and education.
Orders will be made giving effect to that arrangement, whereby sold parental responsibility will reside with the Mother, but she is to inform the Father of any major decisions she makes in relation to the child’s health and education.
Statutory Considerations
By operation of s60CA of the Act, the Court is required to have regard to the best interests of the children as the paramount consideration when making parenting orders. To determine what is in the best interests of the children in this matter, the Court is guided by the primary and secondary considerations set out in s60CC of the Act.
Primary Considerations
In terms of the primary considerations under s60CC(2) of the Act, I have regard to the following:
s60CC(2)(a) – the benefit to the child of having a meaningful relationship with both the child’s parents;
The child has clearly expressed a desire to spend time with the Father. Both of the children’s parents have much to offer the child. I understand that the both parties have an interest in the arts and the Father has an evident passions for the arts.
However, the key word in this consideration is ‘meaningful’. If the Father continues to undermine the Mother by subjecting her to baseless criticism in relation to her parenting and the state of her life when she was 20 years old, then the benefits of the child spending time and having a relationship with the Father become negligible. I am of that view because of the reasons expressed by the family consultant, in particular that the Father’s behaviour will have a tendency to undermine the child’s relationship with the Mother and thereby affect the child’s wellbeing.
s60CC(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.
No matter what orders the Court makes, there is a risk that the Father will continue to expose the child to risk by involving her in adult discussions, denigrating the Mother and discussing Court proceedings. However, the protective frameworks created by the orders made by the Court, to some extent, have the likely effect of minimising those risks.
Secondary Considerations
In terms of dealing with the matters that I must have regard to under s60CC(3), to the extent that I have not already done so, I have regard to the following relevant considerations:
s60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;
Whilst the child is only eight years old, she has clearly expressed the view that she enjoys spending time with the Father and wishes to spend more time with him. I accept that the child is of a very young age, and is therefore impressionable. She may feel responsible for the fact that the parties have separated and is seeking to please the Father by expressing these views.
The child has been put in a very difficult situation, principally by the Father’s inability to contain the expression of his views and attitudes to the child, in particular his negative views of the Mother.
s60CC(3)(b) – the nature of the relationship of the child with: (i) each of the children’s parents; and (ii) other persons (including any grandparent or other relative of the child);
The Mother acknowledged that the child wishes to spend time with the Father and it is plain that both the Father and Mother have the opportunity to provide for meaningful relationships and opportunities with the child.
It is acknowledged by the family consultant and emphasised by the Mother that the Father has sought to control the child. The Father has also given evidence, which was not challenged in cross-examination, that the child has enjoyed a warm relationship with his extended family and with the Mother’s extended family.
s60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child;
The Father asserts that he was the principal carer of the child when the parties were in a relationship. There is no doubt that since the conclusion of the relationship, the Mother has been the principal carer for the child and has made all major decisions in regards to the child. The Father has at all times sought to be actively involved in the child’s life.
s60CC(3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
The Father asserts, without any independent evidence, that the Mother fails to adequately care for the child. The evidence does not support a finding that the Mother has failed to care for the child. The Independent Children’s Lawyer did not produce evidence that the Mother did not care for the child.
If the Father is truly concerned about the child’s welfare, as set out above, perhaps he might make a contribution towards the cost of feeding, educating and clothing his child.
s60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
In my view, the orders that the Court makes will not have a significant effect on the current routines that the Mother has with the child, or the Mother’s capacity to care for the child. I do not see that it is viable for there to be ongoing supervised time, particular as the child get older, and it is for those reasons that the orders are framed as they are.
s60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis;
The Father lives in regional Victoria, approximately two and a half hours drive from Melbourne or three hours by train. The train to City B takes about two hours. The distance between the parties does create difficulties, although they are not insurmountable.
s60CC(3)(f) – the capacity of: (i) each of the children’s parents; and (ii) any other person (including any grandparent or other relative of the children), to provide for the needs of the children, including emotional and intellectual needs;
In my view there is no evidence before the Court that the Mother lacks capacity to provide for the needs of the child, whether it is in relation to the way the child is dressed, personal hygiene, health, education or otherwise. Clearly the Mother has to put the child’s needs before her own view, particular in relation to health. However, there is no evidence before the Court that the Mother is not alive to the child’s health issues, including the child’s iron deficiency, which may have arisen from the child’s diet. I do not accept the evidence that the child is effectively left to fend for herself in relation to feeding, clothing and cleaning.
When giving evidence, the Mother presented as a person who is tired of the conflict between herself and the Father, but that she was not progenitor of the conflict. I am of the view that the Mother is also tired of being effectively traduced by references to her situation when she met the Father, and when the Father, as a 56 year old man, decided to embark on a relationship with her, a 20 year old woman, in difficult circumstances. The Mother does not make negative comments about the Father’s situation when they met or about him generally. She is critical about his approach to parenting.
On the other hand, the Father is deeply focused on himself and his own feelings, and seemingly does not have the capacity to look beyond his grievances with the Mother. His evidence in relation to the way he regards the benefits of the men’s behavioural change course, as set out above, give an ample illustration of that issue.
s60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
There is nothing particularly unique or noteworthy about the child or the parents in relation these considerations.
s60CC(3)(i) – the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents;
The Father has put his own needs above the needs of the child. His inability to modify his behaviour has led to protracted litigation which has imputed on the child and Mother. There is no evidence before the Court that the Mother does not have an appropriate attitude towards her parental responsibilities.
s60CC(3)(j) – any family violence involving the child or a member of the child's family;
In my view, the evidence supports the position that the Father has perpetrated family violence in the course of the relationship and in the period following separation. He has done that by seeking to exert a high level of control over the Mother in the course of the relationship and by denigrating the Mother since separation. On the evidence, it is clear that the Father has also denigrated the Mother to the child and has discussed Court proceedings with the child.
In submissions filed on 10 February 2021, the Mother notes that she has made a number of reports to police about incidents that occurred between her and the Father, and that the police obtained the intervention order on her behalf in or around August 2019. The Mother also makes reference to the incident where the Father withheld the child from her care, by removing the child from her school in NSW and taking her to South Australia without the Mother’s knowledge or consent.
s60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to that child;
The orders by their terms contemplate that the Father may make further application to increase his time with the child. The orders as made are likely reduce the making of applications because it is likely that a continuing requirement of professional supervision, as proposed by the Mother and Independent Children’s Lawyer, will create further aggravation without significant benefit.
s60CC(3)(m) – any other fact or circumstance that the court thinks is relevant
All relevant matters have been canvassed.
CONCLUSION
For these reasons, I will make orders in line with the recommendations made by the family consultant in the family report dated 17 December 2020.
I certify that the preceding one hundred and twenty-five (125) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McNab. Associate:
Dated: 7 April 2021
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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Jurisdiction
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Remedies
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