LANSDALE & MASTERS
[2012] FamCA 701
•22 August 2012
FAMILY COURT OF AUSTRALIA
| LANSDALE & MASTERS | [2012] FamCA 701 |
| FAMILY LAW – CHILDREN – where there is a high degree of conflict between the parties – where the parties are largely agreed on many issues – where the outstanding issues concern overnight and holiday time between the child and his father – where the mother opposes overnight time between the father and the child – whether overnight time is in the child’s best interests – where the child has health issues – where the father has refused to accept those issues, notwithstanding significant medical evidence – where orders made that father spend overnight time with the father, including holiday time. |
| Family Law Act 1975 (Cth) |
| Goode v Goode (2006) FLC 93-286 M v M (1988) 166 CLR 69 |
| APPLICANT: | Mr Lansdale |
| RESPONDENT: | Ms Masters |
| INDEPENDENT CHILDREN’S LAWYER: | Susi O’Reilly |
| FILE NUMBER: | BRC | 7222 | of | 2010 |
| DATE DELIVERED: | 22 August 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 8 – 10 August 2012 |
REPRESENTATION
| THE APPLICANT: | Self Represented |
| COUNSEL FOR THE RESPONDENT: | Mr Selfridge |
| SOLICITOR FOR THE RESPONDENT: | Brisbane Family Law Centre |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER | Ms Hogan |
| SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER | MTM Lawyers |
Orders
UPON THE UNDERTAKING OF THE MOTHER, WITHOUT ADMISSION TO:
a.Make no public statements or statements to the child that the father has a criminal history;
b.Refrain from making any statement to the child and/or any person, other than in a confidential setting for the purposes of receiving counselling or therapy by her, to the effect that, or suggesting that the father wished her to procure an abortion,
IT IS ORDERED BY CONSENT THAT
Parental Responsibility
The Mother shall have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (as amended)) in respect of R Masters-Lansdale (born … April 2009) (“the child”), save that the Mother shall, prior to making the sole ultimate decision about any such issue:
a)Use her best endeavours to advise the Father in writing of the decision intended to be made;
b) Seek the Father’s written response in relation thereto;
c)Consider, by reference to the best interests of the child, any such response prior to making any such decision;
d)Advise the Father in writing as soon as reasonably practicable of her ultimate decision.
That the Mother keep the Father informed in writing by way of at least one (1) email every calendar month to the email address … about decisions made in the exercise of her sole parental responsibility and matters relating to the child.
Each of the parties shall do all such things so as to advise the other in the event of any accident, injury or treatment by a medical practitioner, the name and practicing address of each of such practitioner, occurring during the time that the child spends with each of them.
Each of the parties shall do all such things and sign all such documents so as to authorise and, where appropriate, direct:
a)Any doctor, psychologist, social worker, counsellor, therapist or other health professional treating or having professional contact with the child;
b) Any school which the child attend;
c)The Director of any extra-curricular school or other activity in which the child is involved,
to provide to the other parent, at the requesting parent’s cost, such information as might reasonably be requested about the child together with any report, assessment or other such document provided to a parent in respect of the child.
Each of the parties shall advise the other and keep the other advised of:
a) Their residential address;
b) Telephone numbers at which they and the child can be contacted; and
c)Shall notify any proposed changes in any such details not less than seven (7) days in advance.
Live with and spend time with
The child shall live with the Mother.
The child shall spend time with the father at all times as may be agreed between the parties, and failing agreement as follows:
a)Until the child reaches the age of four (4) years, from 9:00am to 5:00pm each Saturday;
b)On every Father’s Day from 9:00am until 5:00pm provided that the child shall spend corresponding time with the Mother on every Mother’s Day; and
c)On the child’s birthday and if the father is not otherwise spending time with the child in accordance with these orders, from after school until 6:00pm or if same falls on a non-school day, from 9:00am until 3:00pm.
For the purpose of the father spending time with the child pursuant to paragraphs 7 and 21 of these Orders, in the event that a visit is missed due to the child’s ill-health, or as a result of any conduct on the part of the mother, the missed visit will be made up on the following weekend.
That handovers continue to occur at B Contact Centre and at Business C at Suburb D on days when the Contact Centre is not open.
The parties shall not attend the changeover venue or its vicinity before the time with the child is to start and shall promptly leave the changeover venue and the vicinity when the time with the child has concluded.
The mother shall use her best endeavours to ensure that the maternal grandfather does not approach within 25 metres of the father at the time of changeover.
Holiday time with the mother
Commencing 1 January 2013, the mother be at liberty to spend holiday time with the child as follows:
a)Until the child commences preparatory year at school, for up to 6 weeks in each year (with such time to be able to be exercised in blocks of 1, 2 or 3 consecutive weeks at any one time) with the mother to provide the father with 14 days written notice of her intention to have holiday time with the child and the father’s time under these orders (if applicable) to be suspended during such holiday time; and
b)Upon the child commencing preparatory year at school, for up to one half of all school holiday periods, with the mother to provide the father with 14 days written notice of her intention to have holiday time with the child and the father’s time under these orders (if applicable) to be suspended during such holiday time.
In the event that the mother’s holiday time with the child interferes with the father’s time with the child under these Orders, the mother will offer the father the option to exercise ‘make up time’ for any such missed time within four (4) weeks of her returning with the child from holidays.
The mother is at liberty to travel outside of Australia during her holiday time with the child upon her providing the father with at least 14 days notice of her intention to travel. For the purposes of overseas travel:
a)The mother is to provide the father with details of the travel plans including an itinerary and evidence of return flights for the child at least 14 days prior to departure; and
b)Both parties will do all things and sign all necessary documents to obtain and maintain from time to time a passport for the child; and
c)The mother will provide to the father, for his signature, the relevant passport application forms and the father will ensure that the passport forms are signed and returned to the mother within 14 days; and
d)In the event that the father fails to return to the mother within 14 days the signed passport forms, the mother is at liberty to obtain/renew the passport application without the signature of the father; and
e) The passport will be held by the mother.
Communication with
That the father communicate with the child by telephone each Wednesday between 6.00pm and 6.30pm with the father to initiate the call to the child on the mother’s telephone number (currently …) and the mother to make the child available to accept the call.
Baptism
The mother be at liberty to have the child christened in the United Church faith.
The father be at liberty to have the child baptised in the Catholic faith.
Each party must keep the other informed of the occurrence of those respective events not less than 7 days prior to their occurrence
Other
Neither party shall denigrate the other party, and each party will use his or her best endeavours to discourage anyone else from denigrating the other party, whilst in the children’s presence or hearing.
The Independent Children’s Lawyer be discharged.
IT IS FURTHER ORDERED THAT:
Time between the child and his father
The child shall spend time with his father as agreed between the parties or, failing agreement:
a)From the date of these Orders, for eight (8) consecutive visits each Saturday from 9:00am until 3:00pm;
b)After those eight visits, in accordance with paragraph 7(a) above;
c)As and from the time the child turns four (4), every two out of three weekends, from 9:00am Saturday until 5:00pm Sunday;
d)From 5:00pm Christmas Eve until 12:00pm Christmas Day in every even year, commencing in 2012;
e)From 12:00pm on Christmas Day until 9:00am on Boxing Day and in every odd numbered year;
f)In even numbered years, commencing in 2014 and thereafter, from 9:00am on Good Friday until 5:00 pm on Easter Saturday; and
g)In odd numbered years, commencing in 2015 and thereafter, from 9:00am on Easter Sunday until 5:00pm on Easter Monday.
As and from the time the child turns five, the father shall be at liberty to spend holiday time with the child on two occasions per year, with each occasion to be no longer than one week, with the father to provide the mother with 28 days written notice of his intention to have holiday time with the child.
Upon the child commencing school, time exercised by the father in accordance with the preceding paragraph shall occur during school holidays unless otherwise agreed between the parties.
Other
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lansdale & Masters has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC7222/2010
| Mr Lansdale |
Applicant
And
| Ms Masters |
Respondent
REASONS FOR JUDGMENT
R Masters-Lansdale (“the child”) who is about 3½ years old (born in April 2009) has been the subject of conflict between his parents for most of his short life. That conflict finds expression in competing applications for parenting orders by them.
That same conflict pervades every aspect of the parents’ interaction, including in the conduct of these proceedings. That the continuation of this conflict – in all its forms – is significantly harmful to the child is, in my view, obvious, and should be obvious to his parents.
The Proposals
Thankfully the parties were, by the end of the second day of a trial, able to agree upon many of the proposals advanced by the Independent Children's Lawyer (“ICL”) as orders which ought be made in the child’s best interests.
Many of the orders sought by each of the father and mother (comprising, 45 paragraphs and 23 paragraphs respectively) were effectively subsumed in the orders sought by the ICL and otherwise agreed to by each of the parents.
It is both appropriate and convenient, then, to make orders by consent in respect of those matters upon which the parties agree by reference to the ICL’s minute of order and to otherwise record the parties’ respective positions on the outstanding issues using that minute as a reference point.
The orders agreed to between the parties are as follows:
Parental Responsibility
1.The Mother shall have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (as amended)) in respect of the child [R MASTERS-LANSDALE], save that the Mother shall, prior to making the sole ultimate decision about any such issue:
(a)Use her best endeavours to advise the Father in writing of the decision intended to be made;
(b)Seek the Father’s written response in relation thereto;
(c)Consider, by reference to the best interests of the child, any such response prior to making any such decision;
(d)Advise the Father in writing as soon as reasonably practicable of her ultimate decision.
2.That the Mother keep the Father informed in writing by way of at least one (1) email every calendar month to the email address […] decisions made in the exercise of her sole parental responsibility and matters relating to the child.
3.Each of the parties shall do all such things and sign all such documents so as to authorise and, where appropriate, direct:
(a)Any doctor, psychologist, social worker, counsellor, therapist or other health professional treating or having professional contact with the child;
(b)Any school which the child attend;
(c)The Director of any extra-curricular school or other activity in which the child are involved,
to provide to the other parent, at the requesting parent’s cost, such information as might reasonably be requested about the child together with any report, assessment or other such document provided to a parent in respect of the child.
4.Each of the parties shall notify the other of any serious accident, illness or other emergency affecting the child as soon as reasonably possible after its occurrence.
5.Each of the parties shall advise the other and keep the other advised of:
(a)Their residential address;
(b)Telephone numbers at which they and the child can be contacted;
and shall notify any proposed changes in any such details not less than seven (7) days in advance.
Live with and Time
6.The child [R MASTERS-LANSDALE] born on […] April 2009 shall live with the Mother.
7.The child shall spend time with the father at all times as may be agreed between the parties and failing agreement as follows:
(a)For [a number to be determined] [of] consecutive visits each Saturday from 9.00am to 3.00pm and thereafter
(b)Each Saturday from 9.00am until 5.00pm [the position thereafter remains in issue].
8.For the purpose of the father spending time with the child pursuant to paragraph 7 above, in the event that a visit is missed due to the child’s ill-health, or as a result of any conduct on the part of the mother, the missed visit will be made up on the following weekend. [Whether there should be additional make-up time is in issue].
9.That handovers continue to occur at [B] Contact Centre and at that [Business C] at [Suburb D] on days when the contact centre is not open.
10.Commencing 1 January 2013, the mother be at liberty to spend holiday time with the child as follows:
(a)Until the child commences preparatory year at school, for up to 6 weeks in each year (with such time to be able to be exercised in blocks of 1, 2 or 3 consecutive weeks at any one time) with the mother to provide the father with 14 days written notice of her intention to have holiday time with the child and the father’s time under these orders (if applicable) to be suspended during such holiday time.
(b)Upon the child commencing preparatory year at school, for up to one half of all school holiday periods, with the mother to provide the father with 14 days written notice of her intention to have holiday time with the child and the father’s time under these orders (if applicable) to be suspended during such holiday time.
For the purpose of the mother’s holiday time:
(a)In the event that the mother’s holiday time with the child interferes with the father’s time with the child under these orders, the mother will offer the father the option to exercise ‘make up time’ for any such missed time within 4 weeks of her returning with the child from holidays.
[There remain competing applications in respect of “block/holiday time”].
11.That the father communicate with the child by telephone on Wednesday in each week between 6.00pm and 6.30pm with the father to initiate the call to the child on the mother’s telephone number (currently […]) and the mother to make the child available to accept the call.
12.That the mother is at liberty to travel outside of Australia during her holiday time with the child upon her providing the father with at least 14 days notice of her intention to travel. For the purposes of overseas travel:
(a)The mother is to provide the father with details of the travel plans including an itinerary and evidence of return flights for the child at least 14 days prior to departure; and
(b)Both parties will do all things and sign all necessary documents to obtain and maintain from time to time a passport for the child; and
(c)The mother will provide to the father, for his signature, the relevant passport application forms and the father will ensure that the passport forms are signed and returned to the mother within 14 days; and
(d)In the event that the father fails to return to the mother within 14 days the signed passport forms, the mother is at liberty to obtain/renew the passport application without the signature of the father; and
(e)The passport will be held by the mother.
13.The Independent Children's Lawyer be discharged.
The parties are, in addition, agreed between them that:
· The mother be at liberty to have the child christened in the United Church faith.
· The father be at liberty to have the child baptised in the Catholic faith.
· Provided that each party keep the other informed of the occurrence of those respective events not less than 7 days prior to their occurrence.
The mother also agrees, without admission, to provide an undertaking that she will not make any public statements, or statements to the child, to the effect that the father has a criminal record.
In a similar vein, the mother will undertake without admission, that, save in a confidential setting for the purposes of receiving counselling or therapy by her, the mother will make no statements to the child or to any other person to the effect that, or suggesting that, the father wished for her to procure an abortion.
In addition, the parties each agree to what can conveniently be described as a “non-denigration” order consistent with the existing order to that effect.
In respect of changeover, the father seeks to create a separation between him and the mother’s father. The mother refers to the fact that her father facilitates the time by doing the driving. Principal Registrar Filippello ordered that “the parties shall not attend the changeover venue or its vicinity before the time with the child is to start and shall promptly leave the changeover venue or the vicinity when the time with the child is ended. Both parties agree that an order can be made that the mother shall use her best endeavours to ensure that the grandfather does not approach the father within, say, 25 metres at the time of changeover.
Initial Visits
As can be seen by reference to the proposals, the parties are in dispute about time and the manner of its exercise consequent upon an initial agreed period of time. In that respect the ICL and the father agree that time should be spent between the child and his father for a period of eight consecutive visits each Saturday from 9.00am to 3.00pm. The mother contends that there should be 12 visits. There is of course no “magic” in whether the figure should be 12 or eight.
Time between the child and his father, despite some earlier breaks, has now been consistent and regular since March of this year. I am persuaded that it is appropriate for there to be eight visits before a longer period of time commences. The initial period is founded both in the child’s age and stage of development and, also, issues relating to the extent to which the father exercised time, including when he was in Melbourne for a period of time at the end of last year and also the concerns that the mother has about eating difficulties experienced by the child.
Overnight and holidays
The father and ICL are agreed that after that initial period of eight consecutive visits, the child should move to spending each Saturday from 9.00am to 5.00pm with his father until the child turns four (in April 2013). Thereafter the father and the ICL are agreed that the child should spend time with his father for two out of three weekends on Saturday from 9.00am until Sunday at 5.00pm. The mother is opposed to overnight time.
As can be seen from the orders proposed by the ICL, she proposes that the orders do not specifically provide for there to be any “block” or “holiday” time between the child and his father, beyond the weekend time otherwise provided for. It is for that reason that paragraph 10 of the minute of order is expressed in the manner in which it is. That is, the ICL proposes that the father’s weekend time continues, but that the mother be permitted to have periods of holiday time with the child uninterrupted by that weekend time.
The addendum to paragraph 10 contemplates “make-up time” in respect of the weekends with the father lost as a result. It will be appreciated that until the child starts school and subparagraph (b) of paragraph 10 of the orders mooted by the ICL commences, the mother can have up to six weeks of holiday time (with a consequent loss of six weekends) to the father. The effect of the orders is, then, that there would be many weekends (assuming make-up time is availed of) where the child sees his father every weekend and, although he is not at school, spends very little weekend time with his mother.
The father asserted that “make-up time” should occur not only in unavoidable situations, such as illness, but also where his work commitments prevent him from spending time with the child. In my view, whilst it may be appropriate to make contingencies for unavoidable situations, such as illness, and whilst work is a necessary reality for the father, I do not consider it appropriate for there to be make-up time in the event that work commitments prevent the father from spending time with his son.
The father proposes that he should spend holiday time with the child from
1 January 2013 for two weeks taken in two one-week blocks; in 2014 for three weeks taken in one, two or three-week blocks at his election; and, from 2015 onwards, for one half of the school holidays.
As a consequence of opposing overnight time, the mother concomitantly contends that there should be no holiday/block time with the father. In the event that the Court determines that the child should spend overnight time with his father, the mother contends that this should occur each alternate weekend and makes no proposal for holiday/block time.
In respect of “make-up time” (paragraph 8 of the minute of orders), the contention by the father is that time missed as a result of his ill-health, or as a result of his work commitments, ought also be made up by additional time.
The Principles
Despite the limited nature of the inquiry governed by the parameters of the dispute now extant between the parties, the Court is nevertheless obliged to apply the mandatory principles and considerations in Part VII of the Family Law Act 1975 (Cth) (“the Act”) (see Goode v Goode (2006) FLC 93-286). Obviously enough the nature and extent of the inquiry is limited by the issues joined by the parties upon which the Court must make a decision.
It will have been seen that the parties are agreed that the mother shall have “sole parental responsibility” in respect of all major long-term issues subject to a number of requirements the purpose of which can be seen for her to seek and consider the views of the father in respect of each such relevant decision.
Although not specifically provided for in the orders, it is plain that the presumption of equal shared parental responsibility (s 61DA) is agreed by the parties as being inapplicable or having been rebutted in the child’s best interests. The parties’ patent inability to communicate in any meaningful way at any meaningful adult level and the resultant nature, extent and degree of conflict between them is evident across a broad range of issues (it extends, it might be said, even to the nature and extent of the relationship which the parties had).
I do not consider that the parties are realistically capable of doing that which s 65DAC of the Act mandatorily requires if they are to share parental responsibility. The obligations cast upon parents by that section include mandatory requirements for the parties to “consult” and to “make a genuine effort to come to a joint decision”. Further, the section “is taken to require the decision to be made jointly” by, relevantly, the parents (emphasis added in each case).
In my view the orders sought by the ICL to which each of the parents have agreed, are appropriate and I will declare that the presumption of equal shared parental responsibility is rebutted in the child’s best interests.
That being the case, the consideration of the time that the child should spend with each of his parents is not dependent upon satisfaction of the “jurisdictional fact” inherent in s 65DAA of the Act (see MRR v GR (2010) 263 ALR 368). Put another way, the question of the orders for time that best meet the child’s best interests is “at large” (see Goode).
The fact that the mandatory consideration of the prescribed periods of time in s 65DAA is not required, does not in my view mean that a consideration of those amounts of time is rendered irrelevant. The periods of time referred to within that section need to be considered, if relevant, in the context of the circumstances of the particular case, just as any other period of time needs to be considered. So much is apparent from the requirement to make orders for, relevantly, time that accord with a child’s best interests (see s 65D; s 60CA). Naturally enough, a consideration of the amounts of time in the child’s best interests is informed, crucially, by the parties’ and the ICL’s proposals. In a similar vein, the fact that the consideration of the reasonable practicability of prescribed periods of time is not mandatorily required does not mean that the reasonable practicability of orders is not a highly relevant consideration. The requirements upon each of a child’s parents; their inter-relationship; and, the arrangements and interests of the particular child the subject of the orders are all directly relevant to the reasonable practicality of orders. Orders that are plainly impractical are highly unlikely to be in a child’s best interests.
The Issues
As has been observed, although the dispute between the parties might be seen to involve a number of practical aspects as to time, the resolution of the issues outstanding between the parties is dependent, at least in large part, upon the resolution of a central issue, namely, whether the father should have overnight time with the child and, if so, to what extent and when that time should commence.
Before considering that particular aspect, I make a number of observations. First, I reiterate the range and breadth of the accusations and counter-accusations and the depth of the parties’ mistrust and animosity. It can be seen in the parties’ affidavits; their presentation in the witness box and in court generally; and, in the evidence of Ms S, the family report writer. Those accusations and counter-accusations need not be canvassed in detail. What was said by the High Court in respect of specific types of findings in parenting case is apposite (I have, with great respect, modified those words so as to apply to this case):
… It is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation[s]… as the court exercising criminal jurisdiction would be if it were trying the party for a criminal offense. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression … In proceedings of that kind, the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s best interest to maintain the filial relationship with both parents …
Viewed in this setting the resolution of [serious allegations] against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the [serious allegations]. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the [allegations] on the balance of probabilities.
…
… there are strong practical family reasons why the court should refrain from making a positive finding that [the allegation] has actually taken place unless it is impelled by the particular circumstances of the case to do so.
(M v M (1988) 166 CLR 69 at 76 – 77)
It is frequently forgotten when allegations and counter-allegations and wide-ranging accusations about a parent are made by another parent, that children – all children – have only one set of parents and are entitled, issues of harm having been properly considered, to be co-nurtured by the only two parents they will ever have. It also needs to be borne in mind that, unlike in other areas of the law, a particular finding or findings about those accusations (including, it might be said, accusations that can be seen to be related to the Act’s primary or additional considerations) do not lead inexorably to a particular result or results. There are, again, “strong practical family reasons” why that is so.
That said, it is necessary to refer to matters which each of the parties assert have a central role in the positions they adopt to the issues which remain live between them.
The Issue of Conflict and “Alienation”
That result is to be arrived at by reference to the mandatory statutory considerations, within the overall context of the Act’s Objects and Principles. The relentless conflict between the parents, to which I have (perhaps relentlessly) referred, can be seen to be directly relevant to the mandatory s 60CC considerations.
The benefit for the child in having a meaningful relationship with each of his parents is at least, in part, dependent upon the child having, and perceiving, the freedom to love unreservedly and unconditionally each of his parents. It is difficult for that to occur in an atmosphere where blame, counter-blame, lack of communication and mistrust infects each and every communication between the parties at multiple levels.
That same issue of conflict can be seen to infect and be relevant to other mandatory considerations. It plainly impacts on the nature of the relationship that the child enjoys, not only with each of his parents but with his wider family. A specific instance is the involvement of the maternal grandfather.
It also dramatically impacts upon the effect of any changes to the existing arrangements and how those changes might effect the child’s emotional and psychological health. Plainly enough, that same conflict can do little other than infect the willingness and capacity of each of the parents to facilitate a meaningful relationship with the other parent and, specifically, to facilitate time in a way that is beneficial to the child.
The fact that conflict frequently manifests itself, or “bubbles over”, at changeover means that this specific issue is a matter that needs to be addressed in the child’s best interests.
As I have said earlier, the conflict between these parties extends even to whether they had a relationship at all. The father contends that there was no such relationship and in fact, such as might fit that description was, he says, confined to sexual liaisons with the mother. The mother, on the other hand, contends that there was a relationship between the parties between January and October 2008, as well as several attempted reconciliations. The conflict between the parties also extended to the father challenging his paternity of the child – an issue ultimately resolved by way of a paternity test. On any view, it cannot be said that the parties have jointly co-nurtured the child in any meaningful way at any time during his life.
It appears to be common ground that from about August 2009 (following the parties’ attendance at mediation) the father saw the child for periods of up to about four hours, supervised by the maternal grandfather. In about March 2010, time between the father and the child ceased as a result of, according to the mother, the breakdown of the “arrangements” between herself and the father, which ultimately led to the father commencing proceedings in the Federal Magistrates Court for parenting orders in respect to the child.
Subsequently orders were made by Howard FM on 14 September 2010 which provided for the father to spend time with the child on a weekly basis at B Contact Centre. The matter came back before Howard FM on 16 December 2010, and orders were made on that day for time between the child and his father to occur on certain days over the Christmas period and then, thereafter, every Wednesday and every alternate Saturday, unsupervised. Orders were later made, by consent, ceasing the Wednesday visits.
Subsequently, Filippello PR made orders providing for the child to spend time with his father every Saturday for four hours.
The mother asserts that, prior to March 2012, the father repeatedly failed to avail himself of time with the child, as was provided for in terms of the orders. The father, in opening his case, contended that the mother has engaged upon an intentional process of alienation. The father annexes to an affidavit, transcripts of what he asserts occurred during changeovers. He has videoed many such changeovers and sought to adduce those videos in evidence. I did not permit him to do so; he did not satisfy me that any particular video (or all videos) was or were directly relevant to the real issues which I needed to determine. The mother, too, has taped changeovers. The father indicated that his videos were not for the purpose of “videoing the child” but, rather, had a broader purpose of establishing the nature and extent of the conduct on the part of the mother during those changeovers. As I indicated to the father during the course of the hearing, I am not persuaded that his conduct had that purpose; I consider it behaviour that is intimidating to the mother in circumstances where that intimidation (and a broader issue of emotional abuse of her by him) forms a significant component of the case she seeks to make out (s 60CC(2)(a)).
Whatever be the purported justification by either party for videoing or taping those changeovers, I consider the conduct to be the antithesis of child-focussed conduct. I consider it the antithesis of a parent seeking to predominate the needs and best interests of a young child over the matters of on-going dispute between them. To suggest, as the father purported to suggest, that such activity could occur independent of the perceptions of the child, and without emotional ramifications for that child, is, in my view, wholly erroneous.
Much more importantly the activity by each, and the lack of dignity and respect by one parent to the other associated with changeovers more generally and the associated attempts for one to “blame” the other for conduct, masks what is in truth – from the child’s point of view – a problem created by both parents. The fact is, whatever might be the rights and wrongs of the past or present, each parent has a choice as to how they shall behave in front of the child.
What is clear – and highly relevant – is that neither parent is able to exercise that choice so as to make changeovers from the care of one of his parents to the care of the other of his parents, an enjoyable and positive experience for the child. Instead, changeovers are attended by appalling conflict which neither party (on their own evidence) appears able to contain. It is the fact of the occurrence of the conflict which is relevant, not the aetiology of it.
Time and again during the oral evidence of Ms S, the family report writer, she returned to the issue at the heart of these proceedings. She referred to the parental conflict being “so enmeshed” and the attitudes towards each other as being “all the time what comes up [between the parties] is what happened years ago”. There can be little doubt that she is correct about each.
In noting that the child had appeared much more comfortable during the observations made by Ms S for the purpose of the first report undertaken by her on 14 October 2010 in contrast to the later report (when, it might be noted the child was older), Ms S opined that the child on the second occasion was “much more aware of the conflict between his parents”. He “didn’t want to engage” with his father as much and she described poignantly a scene whereby the child had “tears running down his face”. To the father’s credit he immediately indicated to Ms S that he did not want to cause the child distress and the interaction was brought to an end.
Central to the father’s position, outlined by him during his opening at the commencement of the trial, is his assertion that the mother is positively taking steps to alienate the child from him. That proposition was directly addressed by Ms S who conceded that it was “always possible that something happened prior to her observations that might have caused [the child] to react in the way that he did to his father” but, she went on to say that her observations and assessment of the mother is that she had always been “very encouraging” and had been very “normal” about the way in which she sought to interact with the child and to encourage his involvement with his father.
I think it much more likely that the child’s reaction is explained by his growing awareness of the dysfunctional relationship between his parents to which he has been increasingly exposed as time between he and his father has become more frequent and regular. In that respect, each of the parents swear that they use their best endeavours to protect the child from the conflict. I refrain from making a specific finding about that issue because even if the evidence of each is accepted and that they each use their best endeavours, those best endeavours have been inadequate. Again, neither party appears to accept that a child of this age can feel and react to conflict without that conflict being someone’s “fault”. And, again, in my view, neither party appears to accept that they have a choice about how they behave.
Much of the cross-examination of Ms S was directed towards a program by which overnight time between the child and his father could commence and, further, toward the ultimate aim mooted by the father’s orders that there be week-about time as between the parents. The latter was subject to firm opinions from Ms S to the effect that, for so long as the relationship between the parties continued as it was, there was no prospect, as she saw it, of the parents providing the child with the degree of stability and certainty necessary for each of the parents to share substantial time with him. She was of the opinion that, if that conflict and lack of communication and mistrust continued, that such a relationship “would not benefit [the child]”. It will already be clear that I could not agree more.
Similar considerations informed the opinions of Ms S with respect to the introduction of overnight time and, indeed, increasing periods of overnight time, including what was referred to during part of the cross-examination as “block time”, evidence to which I shall return.
It will be appreciated then that the issue of conflict which pervades the inter-relationship of the child’s parents and which is referred to earlier at the commencement of these reasons, is also central to the evidence of Ms S and the opinions reached by her. Indeed, in my view, it pervades every aspect of her report and, in my judgment, correctly so. It is axiomatic that this conflict impacts directly on the child. It also impacts, as a result, directly on the orders that this court might make as to time that he spends with each of his parents.
The Issue of the child’s Eating Problems
A specific aspect of the responsibilities of parenthood is raised by reference to the father’s attitude to what are asserted to be specific health problems suffered by the child. The father contends that the child does not suffer the same difficulties with eating or swallowing that the mother recounts. He says that this is not observable during the time that the child spends with him. The plain accusation by the father is that the asserted eating difficulties are a manifestation of the mother’s anxiety or “neurosis”. It is troubling to me that the father’s views, and his attribution of the problem to the mother, are held in circumstances where the father has seen and, he says considered, a significant amount of medical evidence before the Court.
The father attempted to explain that he “didn’t seek to challenge” the medical opinions but suggested that they were based on things that the doctors or health professionals had been told by the mother (that is, he attributed the problem to the mental health of the mother and not to the physical health of the child). He said that the doctors or other health professionals had not had the opportunity to observe the child eating. The father is plainly an intelligent man. Yet, it seems, he holds his opinions and makes his assertions contrary to the fact that: the reports themselves indicate diagnoses made not only from the mother’s reports but from their own clinical observations and that each of the medical practitioners, as he well knows, owe independent ethical obligations to the child to not treat him unless they themselves diagnose a problem.
Given the father’s apparently implacable view as earlier described, it is important to quote from each of the relevant medical professionals.
A paediatrician Dr M opines:
[The child’s] general examination was normal apart from a poor gag reflex. He had no generalised motor signs. I felt that [the child] had quite a significant problem of oral sensation/chewing and sealing mechanism. I feel he will need a significant amount of speech therapy assistance to help with this but would expect it to gradually improve with time…
[The mother] also mentioned that [the child] gets marked diarrhoea with cow’s milk or yoghurt. As he is breastfed with no difficulties, lactose intolerance is excluded and I think it is more likely that he has a GIT cow’s milk protein allergy…
A report prepared (as a result of referrals from both a gastroenterologist and general practitioner) and signed jointly by a speech therapist and an occupational therapist relates:
…[The child] was observed to eat a small quantity of his preferred foods…He was observed to be able to take a bite of the crunchy foods but did not demonstrate active chewing skills. He tended to suck on the food until it had dissolved enough for him to swallow, rather than chew. He also tended to overfill his mouth by taking several bites in succession or placing several pieces of food in his mouth without chewing…[The child] was observed to have reduced lateral tongue movements for chewing, and his mouth was not as active as it should be in helping to manage the mouthful of food to swallow…At times when his mouth was too full or when he struggled to chew, he did appear a little anxious, displaying some subtle stress behaviours (Facial grimacing).
Further, a single expert report, signed, again, jointly by a speech therapist and an occupational therapist exhibits (in two separate reports) the following opinions:
During the assessment session [on 17 June 2011], [the child] trialed [sic] a number of foods brought from home…[The child] processed most foods with a predominant midline sucking motion and pushed boluses repetitively against the roof of his mouth to soften. [The child] took only very small pieces of foods requiring chewing e.g. sandwich, seeming to self modify these non-preferred foods to make them easier to process.
…
At an initial assessment in May 2011, [the child] presented with immature oral skills for chewing which restricted the range and volume of foods that he would eat…
[The child] has attended 13 Individual therapy appointments with the speech pathologist, following the initial assessment in May [2011]…
[The child] demonstrated improvement in his ability to sit and participate in the therapy session for 30 minutes. He was able to chew and swallow up to 5 very small pieces of sandwich (ie about 1cm square), and expand his tolerance for picking up and placing other types of finger foods…in his mouth. He was able to eat a small quantity of weetbix in some sessions. During the sessions he demonstrated some more signs of aversion to the sensory properties of some foods (eg. gagging)…
It is important to observe that the mother’s actions in and about the child’s feeding problems are based not on idiosyncratic notions of her own, but, rather, on the basis of specific recommendations and advice given by expert health professionals. As I said to the father during the course of the trial, I remain mystified as to how he can maintain the position which he does in respect of this matter. He is, of course, entitled to have his own opinions, but that he should take the stance that he does without, it seems, any regard for what a paediatrician and other health professionals have said and recommended, I find troubling.
I find it troubling not only for itself, but also because it seems to me to be a strong indication of the view he holds of his child’s mother and an indication that his attitude might not only inform his attitude towards her, but predominate it.
Past Parenting – s 60CC(4) and (4A)
The mother alleges that, prior to the order of Filippello PR in March 2012, the father had frequently failed to avail himself of time despite orders giving effect to that time.
Specific examples are given and, in particular, a period from 21 August to 2 December 2011 when the father moved to Melbourne. It is asserted the father did not advise the mother of his return to Brisbane until seeking to avail himself of time in early December. The father said he did not want to tell the mother of his return until such time as he had a permanent place of residence. Quite why that should be his position in circumstances when the orders provided for him to have four hours time and historically time had been spent in places such as parks and the like, eludes me. The father again failed to spend time with the child as per the existing orders between 4 January and 16 March 2012 as, according to the mother, the father elected not to spend time with his son pending the outcome of his “application in a case seeking more time”. That application in a case was heard by Filippello PR on 13 March 2012 and resulted in the current orders for time between the child and his father.
The time not spent by the father has, I think, ramifications for the nature and strength of the bond currently existing between the child and his father. It is also indicative of a fact not significantly challenged by the father, namely that the mother has, historically, been the child’s primary nurturer and he receives, and has received, the great bulk of his day-to-day care from the mother. Those facts have the potential to impact the quantity of time between the child and his father and the pace at which any such time might increase.
However, I am not persuaded that those same facts should inform a finding that there has been a lack of interest by the father in his son or that any such fact or inference drawn from the amount of past time should inform orders significantly into the future.
Relevant Considerations and Orders as to Time?
Plainly, the matters referred to above can be seen as related directly to the statutory considerations. However, as I have said earlier, those Considerations must also be applied by reference to what the parties themselves mark as the parameters of the Court’s intervention. In particular, the orders conceded as appropriate by each of the parents must, axiomatically, be seen as a concession about the child’s best interests and, as a result, a concession (at least implicitly) about the Considerations that inform that decision.
In my view, the evidence before me, including the concessions evident from the parties agreement as to time, permit of the following findings by reference to relevant statutory Considerations:
· The child has a meaningful relationship with each of his parents and will benefit from a meaningful relationship with each.
· The child has historically been nurtured primarily by his mother.
· The child’s primary attachment and the primary source of his day-to-day nurturing resides with his mother.
· In that respect, it is important that the child is not yet 3½ and at an early stage of his development such that many of his developmental needs are met by his primary nurturer.
· The nature of the relationship that the child has with each of his parents is marked by the nature and extent of their erstwhile involvement in his day-to-day care.
· By reference to the mother’s own proposals, such need as exists to protect the child from physical harm (arising from what the mother asserts to be the father’s attitude to an eating problem) and risk to his psychological health (said here, by the mother, to derive from the father’s “attitude towards women” and the role modelling for the child consequent thereupon) is not such that should prevent the child spending time with his father; indeed, the mother concedes that the child should spend graduating time with his father up to a full day on two out of three Saturdays.
· Such issues as might exist between the parties are not such so as to render either of them unwilling or unable to facilitate and encourage a close and continuing relationship between the child and the other parent, at least to the extent that the time is facilitated during the day and with the assistance, in the mother’s case, of her father and with the parties interaction being kept to a minimum.
· The mother concedes, by the orders that she seeks, that the likely effect of changes to the existing arrangements that pertain in respect of the child (which see him spending time with his father for four hours each Saturday, pursuant to an order by Filippello PR on 13 March 2012) are capable of being sustained by the child to his benefit if time occurs for a consecutive number of weeks for six hours and thereafter for an entire day two out of three Saturdays.
· No practical difficulty or expense (save for those which can be accommodated by each of the parties making appropriate effort) attends time which, ultimately, according to the mother’s proposals, sees the child spending all day Saturday on two out of three weekends with his father.
· Similarly, while significant challenge is made to the erstwhile responsibilities of parenthood exhibited by the father, those do not impact upon the child’s best interests such that, on the mother’s case, he ought not see his father for an entire Saturday on two out of three weekends.
The primary concerns held by the mother, as articulated by her counsel, are that the father’s “attitude to women” will result in, as it were, inappropriate role modelling for the child; that there is some risk to the child’s general health and well-being by the father not accepting or appearing to accept, that the child has an eating difficulty as diagnosed by doctors and that this is an abdication of the responsibilities of parenthood; that the father has engaged in two incidents of physical violence towards the mother and has, by his conduct, been emotionally abusive to the mother including in respect of his conduct in and about the proceedings.
These are important matters and plainly directly relevant to many of the statutory considerations by which best interests, and, ultimately, appropriate orders is to be determined. However, in arriving at orders to which they agree, the child’s parents have largely framed for themselves the parameters of the findings to be made. This is not a case where the mother alleges that the child should spend no time with the father (and nor could it, or should it, have been). This is a case where the mother concedes (albeit implicitly) that, when balanced appropriately, the statutory considerations (together with the Act’s Objects and Principles) produce a result where, I repeat, after a period of graduation, the child should spend time with his father for an entire Saturday on two out of three weekends together with some time on special days.
The mother must, then, be taken as arguing that, upon an analysis of the statutory Considerations, Objects and Principles, it is in the child’s best interests to spend that time with his father notwithstanding the serious issues that she raises, but that it is not in his best interests, by reason of those same serious issues, to spend overnight time with his father. That is, there should be findings made about those issues that admit of time spent for an entire day on two out of three weekends, but do not admit of time spent overnight, either on weekends or during “block” holiday time.
Ms Hogan, counsel for the ICL, argues that overnight time as contended by her (with which the father agrees) is in the child’s best interests by reference to a number of pieces of the evidence. She points to the fact that when the child was first interviewed by Ms S in October 2010 (when he was considerably younger than what he is now) the mother contemplated overnight time when the child was about four.
Ms Hogan also submits that, although there have been inconsistencies in time spent by the father (including during a period in which he was employed in Melbourne towards the end of last year) there has nevertheless been consistent time spent with the child since orders were made in March this year. The evidence from the Contact Centre suggests that the child has an enjoyable time with his father.
Furthermore Ms Hogan points to what I regard as the important consideration that that overnight time as contemplated by the orders she moots does not commence until the child turns four – that is, there is another eight months of the child seeing his father in the manner contemplated – that is, each Saturday, until overnight time occurs, allowing further time for the child to further develop his relationship with his father.
The mother’s counsel argues that, while the serious concerns he raises on the mother’s behalf should permit of time for a full day on two out of three weekends, the following findings point against time occurring overnight until the child turns five. According to the mother, there is a significant risk that the father will fail to adequately address and treat the child’s eating issues and that risk is mollified by the child only spending time with his father during the day and returning to his mother, who is able to ensure the child eats dinner and breakfast and who implements the strategies taught to her by the child’s speech pathologists and occupational therapists. According to the mother, by the time the child turns five, he will be attending school and will, it is hoped, have mastered the techniques required to enable him to properly chew. The mother says that this will remove the risk posed to the child by his father’s refusal to accept his eating difficulties and the child will thus be able to spend overnight time with his father, albeit only for one night.
I have already referred to the evidence of Ms S in relation to her observations of the upset experienced by the child during the observations for her second report. In my view, the cause of that is as I have already referred to. When asked about specific recommendations, Ms S’s evidence was heavily caveated; “if” the current level of dysfunction continued to attend the parental relationship, the stability and certainty necessary for the child to enjoy significantly increased periods of time would not be present. “If”, on the other hand, the parents could learn to put aside their conflict and look forward and not back, increased time might benefit the child.
In that respect, when pushed by counsel for a specific opinion as to the commencement of time, Ms S suggested in six months’ time.
Ms S’s oral evidence centred primarily upon the “enormous” amount of “distrust” between the parties and the effect of that, and the fact that there is “absolutely no communication between” the parties, on the child. Indeed, as Ms S put it, there are “a lot of expectations of this little man” and the distrust between his parents could have a deleterious effect on the child’s psychological wellbeing.
Ms S stated that she “could not” recommend block overnight time between the child and his father at the present time, however, should the parties demonstrate a capacity to communicate, and provided the child continues to spend time with his father on a regular and consistent basis, she considered the child could commence spending overnight time with his father on one night per week in six months’ time. However, Ms S opined that overnight time should not occur if the present communication difficulties between the parties continue.
The father seeks orders enabling each party to spend block periods of “holiday time” with the child. Both the mother and the ICL oppose such an order.
According to the ICL, I would be reluctant to order block time between the child and his father in light of the father’s history of failing to avail himself of time with the child and, particularly given the father’s attitude to the child’s feeding issues. Counsel for the ICL also submitted that there is “significant doubt” as to the parties’ ability to communicate and that this also points against an order for block time between the child and his father.
The mother’s reasons for opposing block time are similar to those proffered by counsel for the ICL, particularly the father’s attitude towards the child’s feeding issues. Counsel for the mother also highlighted the nature of the relationship between the child and his father and what is argued to be the concomitant effect block time would have on the child. Counsel for the mother also submitted that the father posed a risk of harm to the child as a result of the father’s alleged negative attitude towards women. In that respect, the mother relies upon evidence that the father was the subject of a criminal complaint by a former girlfriend, which led to the father being charged with two counts of common assault and one count of assault occasioning actual bodily harm, together with evidence of two sexual harassment claims being made against the father by two separate women at the same workplace. (The mother alleges there was a third separate complaint, but the father said he was unaware of it). He was acquitted of the criminal charges. At least one of the sexual harassment complaints was resolved by way of, to use the father’s words, “confidential settlement”. The father relies upon the evidence of Ms E and Father P to rebut the evidence of the mother in respect of the father’s asserted attitude towards women and the impact it may have on the child in terms of role-modelling on him. That evidence is unchallenged. I am not, however, particularly persuaded by it; it is to my mind little more than a “character reference”.
The role of tendency or “similar fact” evidence was not explored during the trial. The fact that three (or perhaps four) women have made formal complaints about aspects of the conduct of the father is an unfortunate coincidence by any standards. I make no specific finding that the father has engaged in the conduct alleged; to the extent that it bears directly upon the actual orders to be made here, other issues are, in my view, more immediate.
The Terms of the Orders?
The issues raised by both counsel for the ICL and counsel for the mother are directly referrable to a number of the Considerations, in particular ss 60CC(3)(b)(i), (c), (d) and (i).
I accept that the nature of the relationship between the child and his father has, thus far, been based solely upon daytime contact between them, usually no more than once per week. That, however, does not and should not preclude an order being made for extended overnight time between the child and his father following a period of gradually increasing amounts time with his father.
I also accept that overnight time with his father will present a change of some significance for the child, who has not spent any significant time away from his mother since his birth. Yet, I note that Ms S was of the opinion that the child is a “resilient little boy”. Significantly, it is not the issues identified by counsel for the mother that Ms S suggests is the concern that marks the barrier to overnight time occurring “in six months”; rather it is the conflict and its attendant issues that, in her opinion marks overnight time not occurring at the present time.
I consider the father’s approach to the child’s feeding issues to be indicative more generally of the father’s attitude towards the mother and, more significantly in terms of the present considerations, the father’s willingness to prioritise his dispute with the mother over his responsibilities to the child. I consider it is also indicative of the personality he exhibited during the trial and in the litigation more generally. Counsel for the mother submitted that the father has engaged in emotional abuse of the mother as a result of the manner in which he has sought to litigate the dispute with her. In this respect, according to the mother, the father has, on average, sent four letters per week to the mother and/or her solicitors. (There was some dispute regarding this figure; however that evidence was not seriously challenged by the father). Regardless of the actual figure, in my view the father has engaged in a relentless process of correspondence with the mother and/or her representatives. I note that the father sought to tender almost 200 documents. The father appears very impressed with his own opinions and views and much less so with the opinions of those who disagree with him – and, particularly, with the opinions of the mother.
It can be seen, then, that a number of findings might be made in respect of many of the statutory considerations and, in particular, those earlier referred to. Yet, in this case, as in so many cases, the essential question is how might those findings inform the actual orders in light of the Act’s Objects and Principles.
As will be apparent, I have real concerns about the father’s attitude toward the mother and to the responsibilities of parenthood. Yet, I do not consider that those findings should prevent him from seeing his son; the loss would be the child’s. The child, like every child ever born, must come to terms with the parents that he has. Will continued conflict between his parents be harmful to him as Ms S suggests? Almost certainly. Will the father’s attitude to the mother be a less than ideal role model for the child? Almost certainly. Yet, how do those matters inform a finding that time should occur for a whole day on two out of three weekends and not one overnight period.
I accept that the father’s narcissistic attitude to the child’s eating problems may cause problems for the child and this may impact upon him but is the potential for that to occur for two additional meals (dinner and breakfast) a reason to not permit of overnight time? I cannot persuade myself that it does.
So, too, in respect of what I consider to be the central and abiding issue in this case. Conflict is undoubtedly harmful for the child and something about which neither of his parents should be proud. Yet, why does that result in no overnight time into the indefinite future, which is the logical extrapolation of Ms S’s opinion. While the child’s capacity to absorb and deal with his parent’s conflict is likely to be impaired at his current developmental stage, growing maturity permits of greater capacity to do so (as the mother implicitly acknowledges in her alternative proposal that overnight time should start when he is five).
There are of course no ready answers to these questions; nor, unless the parents change their attitudes, to the underlying problem for the child as he gets older. But, it is in my view possible to place weight upon a number of considerations that mark out differences in the orders that should be made.
I consider that a powerfully important factor is the nature of the relationship that the child has with his father. Whatever might have been the reason/s for its past attenuation, it is in my view in a fledgling state. That suggests orders which provide for a graduation of time and for an increase in time hastening slowly. I think there is considerable merit in the submissions of counsel for the ICL that by the time the child is four, there will have been the opportunity for the relationship to have developed.
I cannot see that any risk to the child (whether through eating difficulties or role-modelling) is made worse by an increase in eight months time to two days and a night on two out of three weekends.
There can, however, be seen to be an increase in concern in each of those respects if the child was to spend prolonged periods of time away from his mother. I consider it too early to order the holiday time that the father seeks - either now or when the child turns four. However, by the time the child turns five, over a year and a half will have passed during which time he will have been spending increasing amounts of time with his father. The nature of the relationship with his father will, one hopes, have cemented during that time and a five year old on the cusp of schooling is at a different developmental stage to a child of 3½, or even a child of four.
I consider it in the child’s best interests if, when he turns five, he is able to spend a period of a week with his father on two occasions per year. I propose to make orders the effect of which is that up until the child turns four years of age, the father shall spend time with the child on one day per week and, as and from the age of four, the child spend time with his father overnight on two weekends out of three. In addition, I will order that from the age of five the child should be entitled to spend block holiday time with his father, in the form of two one-week periods per year.
I order accordingly.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 22 August 2012.
Associate:
Date: 22 August 2012
Key Legal Topics
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Family Law
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Consent
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Procedural Fairness
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