Keach & Keach
[2021] FamCA 522
Family Court of Australia
Keach & Keach [2021] FamCA 522
File number(s): SYC 3262 of 2020 Judgment of: ALTOBELLI J Date of judgment: 20 July 2021 Catchwords: FAMILY LAW – PARENTING – Review of a Senior Registrar’s decision regarding interim parenting arrangements – Expert Report available – Need for incremental increase in time children spend with the father – Orders made for children to spend further time with the father. Legislation: Family Law Act 1975 (Cth) Part VII, ss 60B, 60CA, 60CC, 61DA, 65DAA
Family Law Rules 2004 (Cth) rr 15.65, 18.10
Cases cited: Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Pinson & Pinson (No. 2) [2020] FamCAFC 111
Number of paragraphs: 65 Date of last submission/s: 9 July 2021 Date of hearing: 9 July 2021 Place: Sydney Counsel for the Applicant: Ms Lioumis Solicitor for the Applicant: Pearson Emerson Family Lawyers Counsel for the Respondent: Mr Campton SC Solicitor for the Respondent: Swaab Attorneys Solicitor Advocate for the Independent Children's Lawyer: Ms Weate Solicitor for the Independent Children's Lawyer: Jennifer Weate & Associates ORDERS
SYC 3262 of 2020 BETWEEN: MS KEACH
Applicant
AND: MR KEACH
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
ALTOBELLI J
DATE OF ORDER:
20 July 2021
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1.Orders 1, 2, 3, 4, 5, 10, and 11 of the orders made on 3 June 2021 be discharged.
2.X born … 2011, Y born … 2012, and Z born … 2015 (hereinafter referred to as ‘the children’) live with the mother.
3.From 26 July 2021 to the commencement of Term 1 2022, the children spend time with the father during the school term as follows:
(a)In week one, and each alternate week thereafter, from after school (or 3pm if a non-school day) on Wednesday to before school (or 9am if a non-school day) on Thursday.
(b)In week two, and each alternate week thereafter, from after school (or 3pm if a non-school day) on Friday to before school (or 9am if a non-school day) on Monday.
4.From Term 1 2022 onwards, the children spend time with the father during the school term as follows:
(a)In week one, and each alternate week thereafter, from after school (or 3pm if a non-school day) on Tuesday to before school (or 9am if a non-school day) on Thursday.
(b)In week two, and each alternate week thereafter, from after school (or 3pm if a non-school day) on Friday to before school (or 9am if a non-school day) on Monday.
5.During the Term 3 2021 school holiday period, the children spend five continuous nights with the father as agreed between the parties, or failing agreement, from the conclusion of school or 3pm on the last day of term to 5pm five days thereafter.
6.During the 2021/2022 summer school holiday period, the children spend time with the father for six continuous nights in the first week, and each alternate week thereafter, as agreed between the parties or failing agreement, from Monday to Saturday.
7.From Term 1 2022 onwards, the children spend the Terms 1, 2, and 3 holidays with the father as follows:
(a)In even-numbered years, the children spend the first half of each holiday with the father.
(b)In odd-numbered years, the children spend the second half of each holiday with the father.
8.From Term 1 2022 and until Z attains eight years of age, the children spend the Term 4 summer holiday period with the father as follows:
(a)In even-numbered years, the children spend the first week, and each alternate week thereafter, with the father.
(b)In odd-numbered years, the children spend the second week, and each alternate week thereafter, with the father.
9.After Z attains eight years of age, the children spend the Term 4 summer holiday period with the father as follows:
(a)In even-numbered years, the children spend the first half of the holiday period with the father.
(b)In odd-numbered years, the children spend the second half of the holiday period with the father.
10.In orders 5-9 above, and unless otherwise defined in these orders, school holiday time is taken to commence after school on the last day of school and end upon the commencement of the new school term.
11.Notwithstanding the above orders, the children spend time with the parties on Christmas Eve, Christmas Day, and Boxing Day, as follows:
(a)With the father from 10am Christmas Eve until 10am Christmas Day, and with the mother from 10am Christmas Day until 3pm Boxing Day (26 December) in all even-numbered years;
(b)With the mother from 10am Christmas Eve until 10am Christmas Day, and with the father from 10am Christmas Day until 3pm Boxing Day (26 December) in all odd-numbered years.
12.If any party wishes to raise issues as to costs, they must notify my Chambers within seven days of the date of these orders.
IT IS NOTED THAT
A.The orders made on 3 June 2021 resume operation on today’s date, save for the orders referred to in order 1 of the orders made today.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Keach & Keach has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
Introduction
This case is about three children: X who is ten, Y who is eight, and Z who is five (hereinafter referred to as ‘the children’). The children currently live with their mother and spend time with their father. These reasons for judgment explain the orders that the Court has made for the children to spend further time with their father.
Background
Both parents live in the Eastern Suburbs of Sydney. The father is 47 years old, and the mother is 41 years old. They commenced a relationship in 2009, married in 2014 and separated in May 2019. The mother has two older children from a previous relationship, W who is 16 and V who is 14. They clearly once had a strong relationship with the father, but appear no longer to do so.
On 9 June 2020 Senior Registrar Campbell, as he then was, made orders for the children to live with their mother and spend time with their father in a fortnightly arrangement as follows:
2.1 In week one commencing 8 June 2020 and each alternate week thereafter:
2.1.1 From after school to 7.30pm for one afternoon as agreed, and failing agreement on Wednesday;
2.1.2 From after school Friday to 5pm Saturday;
2.2 In week two commencing 15 June 2020 and each alternate week thereafter:
2.2.1 From after school to 7.30pm for two afternoons as agreed, and failing agreement on Tuesday and Thursday;
2.2.2 From 5pm Saturday to 5pm Sunday.
The Court has prepared and included in Schedule A to these reasons for judgment a visual representation of the time-spend-with arrangements according to the 9 June 2020 orders.
On 3 June 2021, Senior Registrar Hayward made further interim orders following the receipt of the single joint expert report of Dr B. These orders provide that, commencing 12 July 2021, the children were to live with the mother and spend time with the father during the school term as follows:
3.1 in week one- From after school Tuesday (or 3:00pm in the event that day is a non-school day) to before school Thursday (or 9:00am in the event that day is a non-school day).
3.2 in week two - From after school Friday (or 3:00pm in the event that day is a non-school day) to before school Monday (or 9:00am in the event that day is a non-school day).
The Court has prepared and included in Schedule B to these reasons for judgment a visual representation of the time-spend-with arrangements according to the 3 June 2021 orders.
On 22 June 2021 the mother filed two Applications in a Case—one seeking a review of orders 1-5, 10 and 11 made by Senior Registrar Hayward, and the other seeking a stay of the orders made on 3 June 2021 by the learned Senior Registrar. When the applications came before me on 9 July 2021, I made orders staying the orders of 3 June 2021 pending my decision regarding the review application. These reasons for judgment therefore relate predominantly to the review application.
The matter came before me as an application for review but for all practical and legal purposes, it is a hearing de novo: r 18.10(1) of the Family Law Rules 2004 (Cth) (‘the Rules’). I do not have a copy of the learned Senior Registrar’s reasons for judgment. In any event, the mother’s application for parenting orders had changed in a material respect since 3 June 2021. Indeed, the strong impression formed by this Court is that if the mother had presented her alternative proposal to the Senior Registrar, a different order would likely have been made. There is no criticism in these reasons for judgment directed at the mother for changing the proposal. It was, with respect, entirely appropriate to do so, particularly in light of Dr B’s single joint expert report.
The competing proposals
The mother’s proposed minute of order is attached to her Case Outline document filed 8 July 2021 and reproduced in Schedule C to these reasons for judgment. In effect, the mother seeks a continuation of the orders made on 9 June 2020. In the alternative, and not put before Senior Registrar Hayward, she proposes one overnight in week one from Wednesday after school to before school on Thursday, and two overnights in week two from after school on Friday to 5pm on Sunday. A visual representation of the mother’s alternative spend-time-with proposal is contained in Schedule D to these reasons for judgment. The mother also seeks that the father pay the costs of and incidental to her stay and review applications.
The orders sought by the father are found in his Case Outline document filed 8 July 2021 and reproduced in Scheduled E to these reasons for judgment. He seeks that the mother’s review application be dismissed and that the orders made by Senior Registrar Hayward on 3 June 2021 be confirmed. He further seeks that the mother pay his costs of and incidental to the review application.
The material before the court
In support of her case, the mother relied on the following documents:
(a)Report of Dr B dated 27 January 2021, tendered and marked as exhibit ICL1;
(b)Letter of Dr B dated 19 February 2021, tendered and marked as exhibit ICL2;
(c)Her Application in a Case – Stay filed 22 June 2021;
(d)Her Application in a Case – Review filed 22 June 2021;
(e)Her Affidavit filed 22 June 2021; and
(f)Her Case Outline document filed 8 July 2021.
In support of his case, the father relied on the following documents:
(a)His Amended Response to Final Orders filed 22 January 2021;
(b)Report of Dr B dated 27 January 2021, tendered and marked as exhibit ICL1;
(c)Letter of Dr B dated 19 February 2021, tendered and marked as exhibit ICL2;
(d)His Response to Application in a Case – Stay filed 7 July 2021;
(e)His Response to Application in a Case – Review filed 8 July 2021;
(f)His Affidavit filed 8 July 2021; and
(g)His Case Outline document filed 8 July 2021.
In support of her case, the ICL relied on the following documents:
(a)Report of Dr B dated 27 January 2021, tendered and marked as exhibit ICL1;
(b)Letter of Dr B dated 19 February 2021, tendered and marked as exhibit ICL2; and
(c)Her Case Outline document filed 8 July 2021.
The applicable law
Rule 18.10 of the Rules sets out how a review of a Registrar’s decision should be conducted:
(1) A court must hear an application for review of an order of a Judicial Registrar, Registrar or Deputy Registrar as an original hearing.
There is a helpful note that reads:
In an original hearing, the court rehears the whole matter and does not simply review the decision of the original court.
Subrule 2 details what evidence may be received by the Court:
(2) The court may receive as evidence:
(a) any affidavit or exhibit tendered in the first hearing;
(b) any further affidavit or exhibit;
(c) the transcript (if any) of the first hearing; or
(d) if a transcript is not available, an affidavit about the evidence that was adduced at the first hearing, sworn by a person who was present at the first hearing.
The applicable law in relation to parenting matters is found in Part VII of the Family Law Act 1975 (Cth) (‘the Act’). The Court must regard the best interests of the child as the paramount consideration: s 60CA.
The objects and principles of Part VII are set out at s 60B:
60B Objects of Part and principles underlying it
(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).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s 61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)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.
(2)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.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(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.
Substantial and significant time
(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; and
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.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Because s 65DAA refers to the best interests of the child the Court must then go back to consider s 60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(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;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(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;
(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;
(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;
(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 child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(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;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(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 the child;
(m)any other fact or circumstance that the court thinks is relevant.
The case law
In MRR v GR (2010) 240 CLR 461, the High Court referred to s 65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Full Court’s decision in Goode & Goode (2006) FLC 93-286 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Overview of the cases presented
The mother was represented by her counsel Ms Lioumis. It was clear to the Court that her preference was to maintain the original orders made by Senior Registrar Campbell because, in her view, they enable the children to have a meaningful relationship with their father as well as spend significant and substantial time with him. The time provided minimised opportunities for the father’s aggression and volatility to be manifest with the children. The orders were consistent with the views expressed by the children to Dr B. Indeed, substantial reliance was placed on the report of Dr B. It was submitted that to expand the children’s time with their father was premature and placed an unnecessary burden on the children. The father had not addressed in any meaningful way the concerns raised about him in the report. Nonetheless, the mother proposed as an alternative to a return to the original orders, that the father would have overnight time with the children in week one, and each alternate week thereafter, from after school on Wednesday to before school on Thursday, as well as from after school on Friday to 5pm on Sunday in week two and each alternate week thereafter. In substance, the mother was proposing that the children have an extra night per fortnight with their father, as compared to the original orders. As will be seen, having regard to the concerns that the mother raised in her evidence, this was a significant concession to make. It was also, with respect, an appropriate concession to make.
The father was represented by Mr Campton of senior counsel. The father sought to uphold the interim orders made by Senior Registrar Hayward. On his behalf it was submitted that to grant the orders sought by the mother would be to lock the children into an entirely inappropriate parenting arrangement for several years until the matter is finally heard. He argued that this was a case where the objective independent evidence established that the children have a good relationship with their father and are comfortable in his care. They are progressing well at school. Changeovers are not problematic. It was further submitted that the mother raised issues relating to the father that are contentious, in respect of which no findings can be made at an interim hearing, and that a close examination of the evidence will reveal that notwithstanding the parental conflict over time issues, the parents communicate quite well about the children. Moreover, it was submitted that the expert evidence was supportive of an extension of time and the mother’s proposal in relation to school holiday time lacked any rationale.
The children were represented by an experienced Independent Children’s Lawyer, Ms Weate (‘ICL’). She described the original orders made by Senior Registrar Campbell as ‘holding orders’ pending the receipt of expert evidence. When that evidence was received, there was support for the proposition that each parent should spend a full weekend with the children, which the ICL interpreted as including Sunday evening. The ICL supported substituting the two afternoon visits in one week with overnight time, and suggested that there might be some utility to increasing the one overnight in the alternate week to two nights as the children become more accustomed to more time in their father’s home. She suggested that changes for the children might be much easier to implement if they evolved over time rather than being suddenly introduced. The ICL also pointed out that there was an issue with school holidays which should, perhaps, be structured in a way to reduce significant separation between the children, their mother and siblings, and their father. It is clear in this respect, therefore, that the ICL did support aspects of the father’s proposal.
The evidence of Dr B
Dr B provided a report dated 27 January 2021. She then provided a supplementary report by way of letter dated 19 February 2021 in response to a letter dated 4 February 2021 that asked questions pursuant to r 15.65 of the Rules. At the outset, this Court acknowledges that the evidence of Dr B is untested and therefore must be treated with caution. Nevertheless, it is the only independent expert evidence in this case and the Court is still entitled to rely upon it to make provisional findings: see, eg, Pinson & Pinson (No. 2) [2020] FamCAFC 111.
Dr B’s report is comprehensive and involved interviews and psychological testing. She visited the children in the homes of both parents. She also interviewed W and V. The matters of background and history which she sets out in the report are consistent with material before the Court. The Court places significant weight on the report.
When Dr B met the mother she described her as friendly, sociable and warm. She appeared cooperative to assessment. She gave a coherent account and was logical in her thinking, but sometimes seemed understated. She acknowledged, and expressed regret about, the estrangement between W and V, and the father, but attributed this to his behaviour towards them. She felt that the original orders established a parenting arrangement that was working well for the children and the parents.
When Dr B met the father, she described him as somewhat intense, long-winded and bombastic, but relaxed considerably when seen in the presence of the children. Dr B described him as being difficult to interview with the father often struggling to answer questions directly, but preferring to make criticisms of the mother, W and V. She observed themes of grandiosity and disinclination to admit fault. She found his account disjointed and hard to follow. He appeared angry at times. Dr B observed that in the interview, each question or topic of discussion tended to end with the father drawing unflattering comparisons between his parenting of the children and that provided by the mother. The father seemed to accept that his relationship with W and V had broken down. He attributed this to their alignment with their mother and adopting a false pretence of disliking him. He did acknowledge, however, that he had made highly inappropriate comments to W and V, albeit in the heat of the moment. He acknowledged that his relationship with the mother was conflictual at times. Some of that was in the context of an emotional separation. Dr B noted that the father was strongly of the view that under the original orders the children were not spending enough time with him.
At page 18 of the report Dr B records of the mother:
When asked to describe X’s relationship with her father, Ms Keach stated that they have a “good relationship”, and she believes that Mr Keach “is a good dad”. She emphasised that she would “never say he is not a good dad” but thought towards the end of the relationship his relationship with the three younger children suffered because he was “yelling so much”. She thought that X, Y, and Z generally enjoy their time with their father and “have fun” but thought that Mr Keach is focused on providing a positive experience for them now and this has assisted in improving his relationship with them.
Dr B interviewed X. She described her parents’ relationship as involving a lot of fighting and she was happy because the parents were no longer living together. She described her time with her father as “fine”. She liked the current arrangement as it was at the time but understood that whilst this made her mother happy, it made her father unhappy. X likes her father, but finds him frightening when he is angry.
Dr B described Y as a happy, confident and outgoing child, but one who was uninterested in being interviewed. He too described his parents’ relationship as involving a lot of fighting. He was relieved they were now living apart. He thought, however, that his parents still continued to “fight by text”. He thought that his dad was still rude to his mum. Y described his father as nice, noting that “he doesn’t yell at us anymore”. He understood that both parents wanted more time with him. He explained that “anything that makes mum happy is better”.
Dr B also interviewed Z, describing her as outgoing in nature, quite innocent, and in the lower ranges of emotional maturity for her age.
Dr B conducted behavioural observations with the children, but noted that both W and V declined to be included in the observations with their father. With their mother, and in her home, all the children were relaxed. W and V were polite and friendly. They were respectful towards the mother. The three younger children looked to the elder sisters to assist them naturally and appropriately, and all five children deferred to their mother. The atmosphere was of relaxation and satisfaction.
When the children were brought to their father’s home by the mother, they exited the car easily and entered their father’s home. They greeted their father with hugs. All three children were enthusiastic. They spoke freely with their father, asking him questions, smiling at him, looking into his eyes, and frequently seeking physical contact with him. They were happy to be with him. The father was warm and loving, appearing to be an indulgent parent. Dr B noted that the intensity seen in the father when interviewed disappeared, and he seemed relaxed.
Dr B administered psychometric testing. In the absence of cross-examination about the results of this testing, the Court does not rely on the same in making the present interim decision.
Dr B’s summary and recommendations commence at page 26 of her report. She described the parents as an unusual couple. They appeared to be mostly satisfied in the relationship, and with blending W and V with their three biological children. Dr B was concerned about the father’s account of the relationship, and particularly his antagonism towards W. In addition, the father showed concerning preoccupation with the mother and there were elements of possessiveness and obsessiveness in his descriptions of her. Whilst she found the father a little eccentric, she did not consider that he represented a risk to the younger children outside the potential to expose them to his hostility towards the mother, W and V. All three children were aware of, and to different extents worried and disturbed by, the parental conflict, but things are better now than they were before separation. W and V were also exposed, and probably directly involved, in the parental conflict. Whilst W and V have very strong, close, loving sibling relationships with the younger children, they now reject the father. The father presented as a devoted parent showing a good knowledge of the needs, personalities and interests of the younger children. It was likely that both parents involve the children in loyalty conflicts.
Dr B’s specific recommendations are at pages 28-29 of her report, as follows:
I recommend that Mr Keach attend a parenting after separation course and seek psychological support for his current stress around the separation. Both parents would also benefit from some post-separation couples counselling, and it would be better if this were in the form of a parenting coordination model.
It is my further recommendation that something like the current arrangements for the children (X, Y, and Z) best suits their needs to live with their mother and spend regular time with their father. Mr Keach’s apparent inadequate capacity to manage his feelings towards Ms Keach, W and V appear likely to at least partly explain any feelings of distance and any disturbance seen in the children.
A positive outcome of the parents’ dynamic appears to be Ms Keach’s capacity for cooperation and a forgiving nature, which suggests a favourable prognosis that with some time and support, they might begin to develop a cooperative relationship.
(Footnotes omitted)
Dr B then addressed specific questions asked of her. She considered that the children were at high risk of being exposed to parental conflict and hostility before separation, but in terms of future risks, these seem in the low range. All five children have loving and trusting relationships with their mother. The younger children have loving relationships with their father that appear conscious and wary of the parental conflict. The younger children would likely be devastated by any separation from their mother, W, and V, and this was a further reason to support the children spending time with the father in the current arrangement. She could not support the concept of the younger children being away from the elder siblings and mother for longer than is currently in place. The mother had the superior capacity to provide for the children’s needs whereas the father’s preoccupation with his hostility towards the mother and W impacts on his capacity to provide for the children’s emotional needs.
Dr B, in her supplementary letter 19 February 2021, was able to elucidate further on matters relevant to the Court in this interim hearing. Focusing on the spends-time-with arrangements, at point six of her letter Dr B states:
Something like the present arrangements, does not mean ‘exactly’ like the present arrangements. The main principle in the sentence is ‘to live with their mother and spend regular time with their father’ (i.e. “their needs to live with their mother and spend regular time with their father”). Of course, the children should be able to spend full weekends with their mother and father, holiday time longer than three days with their father and mother and have both leisure time and weekday time with their mother and father. These are important aspects of a child’s life and the parenting of them. Unfortunately, psychological knowledge rarely extends to distinctions between specific times, dates or exact arrangements for children to spend time with their parents.
Dr B was also asked to elucidate on her suggestion that the younger children would be devastated by separation from their mother. At point eight of the letter she states:
My response to the question could have been more specific but the meaning is clear from the context that X, Y, and Z would be adversely affected by any significant separation from their mother and elder sisters, such as is implied by the question.
Assessment of X, Y and Z indicated that they perceive their mother is providing for most of their emotional, psychological and social needs, that is, they experience their mother’s house as ‘home’.
My response also emphasised, in contrast to Mr Keach’s allegations, that X, Y and Z have strong sibling relationships with W and V.
Orders in the best interests of the children
The orders in the best interests of the children in this case are determined having regard to the evidence and by reference to the primary and additional considerations set out in s 60CC of the Act as are relevant on the facts of this case.
All of the evidence, both lay and expert, strongly points to the children having a meaningful relationship with both the mother and father. In effect, the father submits that his relationship would become even more meaningful, in a qualitative sense, if he were to spend more time with them. The relationship between time spent and the quality of that time is a frequent feature of these types of cases.
The only risk of harm from which these children need to be protected is the psychological harm from being subjected to or exposed to what appears to be the intense parental conflict about them. Experience indicates that the conclusion of these proceedings, preferably by settlement, will be the key to removing what is clearly an emotional burden on the children. This is an unusual case in more than the sense identified by Dr B. It is a high conflict case, as manifested by the intensity with which this litigation is being conducted, yet it lacks many of the features of other high conflict cases. For example, on the evidence of both parents, and from their perspective, changeovers are relatively unproblematic and they seem to be able to communicate effectively about the children.
There is evidence that the children have expressed views about spending time with their father. Both parents refer to this in their affidavits. Dr B refers to this in her report, but seems to place no weight on the children’s views. The Court also places no weight on this evidence due to the ages of the children and their acute awareness of the conflict between their parents.
The children have an excellent relationship with both parents. It is highly likely that the relationship with their mother requires them to spend more time with her until they individuate. This is evident from Dr B’s report where she warns about the potential consequences on the children of extended absences from their mother. The children also have a close and very important relationship with their sisters, W and V. Dr B’s concerns about extended absences also related to W and V.
Under the 9 June 2020 orders the children spend minimal time away from their mother.
Under the orders made 3 June 2021 the children are away from the mother from after school on Tuesday to, in effect, after school on Thursday. This is on the basis, of course, that the father would return them to school on the Thursday morning. In the following week they would be away from the mother from Friday morning when, presumably, she would take them to school, through to Monday afternoon when, presumably, she would collect them from school. Whilst the absence could be described as two nights in one week and three nights in another, the children’s actual experience of absence is not measured in nights only. For the children, under the 3 June 2021 orders, during the first week they are not seeing their mother for almost three whole days. In the second week, they are not seeing their mother for almost four whole days.
The mother gives evidence about the children’s experience of being initially unsettled after the 9 June 2020 orders, on return from spending time with their father.
On the mother’s alternative proposal, in the second week the children would not see their mother between the time she takes them to school on Friday morning to the time the father returns them to her home on Sunday evening i.e. almost three whole days from the children’s perspective. The Court infers that she would not make this proposal unless she were confident that the children could cope with this sort of absence from her.
The benefit of the mother’s alternative proposal is that it removes the number of changeovers that are inherent in the 9 June 2020 orders. From the Court’s perspective, this is desirable. Even though the parents do not depose to problematic changeovers that does not mean that the children of high conflict parental relationships do not experience frequent changeovers as stressful. They are moving not just from one physical space to another but, more significantly, from one psychological space to another. Fewer changeovers are therefore likely to be a feature of more child-focused parenting arrangements.
Dr B explicitly favoured the children having an entire weekend with each parent. The Court believes the ICL was correct to interpret this as including the father returning the children to school on Monday morning. The mother gave no specific evidence about Sunday evenings being a particular difficulty or pressure point for the children. Her main concern seemed to be their absence from her, their older siblings and her home. Senior counsel for the husband submitted that it would be hard for the Court to perceive any plausible rationale for the mother accepting that the children could be away from her from Friday morning to Sunday evening, but somehow they could not be away from her from Friday morning to Monday after school. There is substance to this submission. The children are not infants or toddlers. They have a good relationship with their father. Their sibling relationship is strong. The time in question is mainly weekend time which, in all likelihood, is experienced by children as being very different to weekday time. Moreover, the mother’s own evidence is that the children freely communicate with her when under their father’s care. Being away from their mother for three nights and four days is not outside of the parameters indicated by Dr B. Importantly, it does give the father all the indicia of substantial and significant time as defined in s 65DAA of the Act, even if that concept is not technically relevant here as there is no order for equal shared parental responsibility.
An important consideration in this case is the likely effect of any changes in the children’s circumstances as a result of making orders for the children to spend time with their father. This logically follows from the issues raised in the preceding paragraph. The Court believes the ICL was correct in raising the prospect that increasing the children’s time with their father should take place in an incremental fashion to minimise any possible adverse impacts on them. A matter the ICL did not explicitly raise, but which is plausible on the evidence before the Court, is that incremental extension of the children’s time might also address the mother’s concerns about how the children would cope with absences from her and their siblings. Thus, the ICL suggested that an alternative might be to reduce the children’s overnight time in week one to one night for a period of time before increasing it to two nights. This Court is particularly attracted to this option in circumstances where it believes that the children will benefit from having a full weekend with their father in the alternate week which will be experienced as a change by them. Accordingly, subject to other matters to be discussed, this Court believes that the children should be spending Wednesday overnight to Thursday with their father in week one until the commencement of school in Term 1 2022, at which point it will extend to Tuesday after school to before school on Thursday, in accordance with the orders made on 3 June 2021.
There are no discernible issues of practical difficulty and expense in implementing any of the proposals for the children to spend time with the father.
Despite the matters raised by the mother in her Affidavit about the father’s parenting capacity, her concerns are inconsistent with her own proposal, the evidence about the children’s relationship with their father, and the expert evidence of Dr B.
There are issues of concern, however, in relation to the father’s attitude towards the responsibilities of parenthood. These arise mainly in terms of his attitude of blame and anger towards the mother and towards the children’s older siblings. The Court accepts his evidence that he is trying to address these issues with professional assistance. He should certainly continue to do so. At a final hearing, these issues could become a formidable obstacle to the father seeking more time, if that is what he was contemplating. At an interim level, the above represents mere impressions of the Court and is largely based on untested evidence of Dr B and the mother. For present purposes, these attitudinal concerns can be managed by structuring the orders to minimise changeovers that might bring the parents into contact with each other. Moreover, the scrutiny of the Court during the litigation process is another protective factor. Dr B made her recommendations about the father’s time with the children whilst being fully aware of the concerns in question.
Having regard to the evidence in the matters discussed above, this Court believes that the orders in the best interests of the children for school term time with their father would be as outlined in the preceding paragraphs i.e. in week one, and until the commencement of Term 1 2022, the children will spend time with their father from after school on Wednesday to before school on Thursday but, thereafter, from after school on Tuesday to before school on Thursday. In week two, the children will spend time with their father from after school on Friday to before school Monday.
The focus turns to school holidays. The orders made 9 June 2020 provided for the children to spend three nights per week with their father during school holidays, with the days to be as agreed between the parties and failing agreement, Monday, Tuesday, and Wednesday each week. The mother proposed that from the Term 3 2021 school holidays the children spend three nights each week with their father during school holidays, and then in the Term 4 2021 Christmas holiday period, five nights each alternate week with their father. Their time with the father would incrementally increase over time.
The 3 June 2021 orders simply provided for half of each school holiday period. This was originally supported by the father. During submissions, his senior counsel informed the Court that the father would agree that during the 2021/22 Christmas to New Year vacation, the time with the children would be week on/week off. The ICL supported the notion of week-about time during the longer school holidays. From the Court’s perspective, the focus is on the expert evidence in relation to the children spending time away from the mother. Although Dr B was able to confidently say in her report that the children can spend more than three days with their father during school holidays, she did not say that the children could cope with the week apart from the mother and siblings, and that is hardly surprising given the history that was presented to her and the evidence before the court. In these circumstances, the Court has reservations about progressing to week-long holiday time without a lead-in period. Once again, the Court recognises the children are likely to experience school holiday time in a different way to school term time. The evidence indicates free communication between the children and the parent with whom they are not spending time. This enhances the prospect of successful longer periods of time with their father. In order to facilitate this change for them however, the Court will make orders that provide for five continuous nights in the forthcoming end of Term 3 school holidays, six continuous nights in each alternate week of the 2021/22 school holidays, and thereafter half of each of the midyear school holidays, and week-about during the 2022/23 school holidays. After Z has turned eight years old, the end of year school holidays can be shared equally in continuous blocks as between the parents.
Other matters
There was an issue about the orders for the children to spend time with each parent over Christmas. Not much was said about this in submissions. I see no difficulties from the children’s perspectives about the orders made in this regard by the learned Senior Registrar.
I granted a stay of the orders sought to be reviewed, pending these reasons, because of the lack of time to properly consider the magnitude of difference from the children’s perspective between the existing orders and those proposed. As it turns out the period of the stay is relatively modest.
I note that costs orders were sought. My preliminary view is that each party should bear their own costs. However, should any party wish to formally raise this issue, they should notify my Chambers so that appropriate directions can be made.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 20 July 2021
Schedule A
Key:
Red: time with the mother
Blue: time with the father
Schedule B
Schedule C
PROPOSED MINUTE OF ORDER
THE COURT NOTES:
1. The following definitions for the purpose of these Orders:
1.1 “Act” means the Family Law Act 1975 (Cth);
1.2 "children" means:
1.2.1 X born in 2011
1.2.2 Y born in 2012; and
1.2.3 Z born in 2015.
1.3 "father" means Mr Keach born in 1974;
1.4 "mother" means Ms Keach born in 1980.
1.5 "parties" means the mother and father;
PENDING FURTHER ORDER, THE COURT ORDERS THAT:
2.That Orders 1-5, 10 and 11 of the Orders made by Senior Registrar Hayward on 2 June 2021, and delivered on 3 June 2021, be reviewed.
3. The children shall live with the mother;
4. That the children shall spend time with the father as follows:
4.1 In Week one and each alternate week thereafter:
4.1.1From after school to 7.30pm for one afternoon as agreed, and failing agreement on Wednesday;
4.1.2From after school Friday to 5pm Saturday;
4.2 In Week two and each alternate week thereafter:
4.2.1From after school to 7.30pm for two afternoons as agreed, and failing agreement on Tuesday and Thursday;
4.2.2From 5pm Saturday to 5pm Sunday.
5.IN THE ALTERNATIVE TO ORDER 3 ABOVE, that the children shall spend time with the father as follows:
5.1 In Week One and each alternate week thereafter:
5.1.1From after school on Wednesday, or 3pm if it is a non-school day, to before school on Thursday, or 9am if it is a non-school day;
5.2 In Week Two and each alternate week thereafter:
5.2.1From after school on Friday, or 3.00pm if it is a non-school day, to 5pm on Sunday.
6.Notwithstanding any other orders to the contrary, the children live with each of the parties as follows:
6.1With the mother from 10am to 5pm on a weekend or after school to 7.30pm if on a school night on the mother’s birthday if her birthday falls during a period when the children are living with the father;
6.2With the father from 10am to 5pm on a weekend or after school to 7.30pm if on a school night on the father's birthday if his birthday falls during a period when the children are living with the mother;
6.3With the mother for V and W's birthdays as agreed and failing agreement from after school or 3.00pm to 7.30pm on a school day, and from 10am to 5pm on a weekend.
6.4For the Easter long weekend period, the parties shall spend time with the children as agreed and failing agreement, as follows:
6.4.1In even numbered years, from 9am Easter Friday until 12pm Easter Sunday with the mother and from 12pm Easter Sunday to 9am the following Tuesday with the father.
6.4.2In odd numbered years, from 9am Easter Friday until 12pm Easter Sunday with the father, and from 12pm Easter Sunday to 9am the following Tuesday with the mother.
6.5For the Christmas period, the parties shall spend time with the children as agreed, and failing agreement, as follows:
6.5.1 from 9am Christmas Eve until 2pm Christmas Day with the mother;
6.5.2 from 2pm Christmas Day to 2pm Boxing Day with the father.
School Holidays
7.That during the 2021 Term 3 school holiday period the children will spend time with the father for three (3) nights per week as agreed between the parties in writing with the father to nominate to the mother such periods of time to be taken no later than three weeks prior to the commencement of each school holiday period or failing agreement then the first three (3) days of each week of the school holidays, that is Monday, Tuesday and Wednesday.
8.That during the Christmas School Holiday period, the children will spend time with the father for five (5) nights each alternate week of the school holidays as agreed between the parties in writing, with the father to nominate to the mother such periods of time to be taken no later than three weeks prior to the commencement of the Christmas School Holiday period, or failing agreement then the first five (5) days of each alternate week of the Christmas School Holiday period, that is Monday, Tuesday, Wednesday, Thursday and Friday.
9.That during the 2022 Term 1, Term 2, and Term 3 school holidays and thereafter, the children spend time with the parties as follows:
Term 1 School Holidays
9.1With the father for five (5) nights in either Week 1 or Week 2 of the school holidays, as agreed between the parties in writing with the father to nominate to the mother such periods of time to be taken no later than three weeks prior to the commencement of each school holiday period or failing agreement then the first five (5) days of either Week 1 or Week 2, that is Monday, Tuesday, Wednesday, Thursday and Friday;
9.2otherwise the children live with the mother in the Term 1 school holiday period.
Term 2 School Holidays
9.3In Week 1 with the father for three (3) nights as agreed between the parties in writing with the father to nominate to the mother such periods of time to be taken no later than three weeks prior to the commencement of the school holiday period or failing agreement then the first three (3) days of the week, that is Monday, Tuesday and Wednesday;
9.4In Week 2 with the father for four (4) nights as agreed between the parties in writing with the father to nominate to the mother such periods of time to be taken no later than three weeks prior to the commencement of the school holiday period or failing agreement then the first four (4) days of the week, that is Monday, Tuesday, Wednesday and Thursday;
9.5In Week 3 with the father for three (3) nights as agreed between the parties in writing with the father to nominate to the mother such periods of time to be taken no later than three weeks prior to the commencement of the school holiday period or failing agreement then the first three (3) days of the week, that is Monday, Tuesday and Wednesday;
9.6otherwise the children live with the mother in the Term 2 school holiday period.
Term 3 School Holidays
9.7With the father for five (5) nights in either Week 1 or Week 2 of the school holidays, as agreed between the parties in writing with the father to nominate to the mother such periods of time to be taken no later than three weeks prior to the commencement of each school holiday period or failing agreement then the first five (5) days of either Week 1 or Week 2, that is Monday, Tuesday, Wednesday, Thursday and Friday;
9.8otherwise the children live with the mother in the Term 3 school holiday period.
Communication
10.The mother is to facilitate the children communicating with the father at 8pm each night by telephone or mobile, and FaceTime or Skype, as agreed.
11.The Father is to facilitate the children communicating with the mother during the times that the children are spending time with the father for any overnight period pursuant to these Orders, at any time as requested by the children, otherwise at 8pm on each night the children are with the father.
12.The parties are to use their best endeavours to ensure that the children communicate by telephone or mobile with the other party pursuant to Orders 10 and 11.
Restraints and Injunctions
13.That each of the parties be restrained from discussing these proceedings with the children.
14.That the parents be restrained from denigrating the other parent or member of the other parent's household, or allowing any other person to denigrate the other parent or member of the other parent's household, in the presence or hearing of the children.
Costs
15. That the father pay the mother's costs of and incidental to this application.
Schedule D
Schedule E
4 ORDERS SOUGHT BY THE FATHER
4.1That the Application in a Case of the Mother filed on 22 June 2021 for a stay of the Orders made 3 June 2021 be dismissed.
4.2That the Application in a Case of the Mother filed on 22 June 2021 for a Review of the Orders made 3 June 2021 be refused and the Application dismissed.
4.3That the Orders of the Senior Registrar of 3 June 2021 be confirmed.
4.4That if the Mother continues to press for Order 5.3 as set out in her Review Application as filed 22 June 2021 then the Father does not oppose those Orders being made.
4.5That the mother pay the father’s costs of and incidental to the Application for review
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Expert Evidence
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Procedural Fairness
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Appeal
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Jurisdiction
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Natural Justice
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