Little and Little and Ors
[2018] FamCA 198
•29 March 2018
FAMILY COURT OF AUSTRALIA
| LITTLE & LITTLE AND ORS | [2018] FamCA 198 |
| FAMILY LAW – CHILDREN – where the father has never filed a sworn affidavit in the proceedings – where the father’s response was struck out – where the father did not participate in the hearing – where all the children have been living with the maternal grandfather and step maternal grandmother since December 2016 – where there is a history of family violence perpetrated by the father against the mother – where the children have witnessed family violence – where the children have been subject to neglect by the mother and father – where the parents have a history of alcohol and substance abuse – the need to protect the children from harm when in the care of the mother and the father – order that the children spend no time with the father – order that the father be permitted to send cards and gifts to the children – order that the children spend time with the mother as agreed with the maternal grandfather and step maternal grandmother subject to the mother enrolling in a parenting course and providing two clear consecutive drug screens – order that the children not spend overnight time with the mother for the first 12 months. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 64B, 65C, 68B, 122AA Evidence Act 1995 (Cth) s 140 |
| Aldridge and Keaton (2009) FLC 93-421 Bondelmonte v Bondelmonte (2016) 259 CLR 662 Malcolm and Munroe (2011) FLC 93-460 McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405 Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518 Valentine and Lacerra and Anor (2013) FLC 93-539 |
| APPLICANT: | Ms Little |
| RESPONDENT: | Mr Little |
| INTERVENOR: | Mr Weekes & Ms Polson |
| INDEPENDENT CHILDREN’S LAWYER: | Sofra Solicitors |
| FILE NUMBER: | MLC | 7806 | of | 2011 |
| DATE DELIVERED: | 29 March 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Johns J |
| HEARING DATE: | 18 October 2017 |
REPRESENTATION
| THE APPLICANT: | In Person |
| THE RESPONDENT: | In Person |
| THE INTERVENORS: | In Person |
| SOLICITOR FOR THE INDEPENDENT CHILDRENS LAWYER: | Sofra Solicitors |
| COUNSEL FOR THE INDEPENDENT CHILDRENS LAWYER: | Mr Nicholson |
Orders
(1)That all previous orders in relation to the children, B born … 2002, C born … 2004, D born … 2005 and E born … 2008 (“the children”) be discharged.
(2)That the Intervenors have sole parental responsibility for making decisions regarding the long term care, welfare and development of the children.
(3)That the children live with the Intervenors.
(4)That the father spend no time with the children.
(5)That the father be permitted to send cards and gifts to the children on each of their birthdays and at Christmas provided that:-
(a) The card or gift is sent to the Intervenors;
(b)The Intervenors shall inspect such communication prior to passing on to the child or children; and
(c)In the event the Intervenors deem that communication to be inappropriate they be excused from passing such communication to the children.
(6)That save as provided in order 5 hereof the father be and is hereby restrained by injunction pursuant to s 68B of the Family Law Act (“the Act”) from communicating with or attending at or within 200 metres of the residence, place of work (whether paid or unpaid) or tuition of:-
(a) the children;
(b) the Mother; and
(c) the Intervenors
and for the avoidance of doubt this injunction is for the personal protection of the mother, the children and the Intervenors referred to in this Order and pursuant to s 68C of the Act a power of arrest, without a warrant, attaches to this injunction.
(7)That save as provided in order 5 herein the Intervenors be and are hereby restrained from bringing the children or either of them into contact with the Father.
(8)That the mother be and is hereby restrained from bringing the children or either of them into contact with the Father.
(9)That subject to the Mother:-
(a)Enrolling in and completing an accredited course in parenting effectiveness and providing a certificate of completion for same to the Intervenors; and
(b)Producing two (2) consecutive supervised urine drug screens which are clear of illicit substances, such supervised drug screens to be completed within 48 hours of being requested to do so, in writing (including by SMS text message or e-mail), by either both or one of the Intervenors;
the children spend time with the mother as agreed in writing between the Intervenors and the mother provided that upon time commencing, such time shall:-
(i)in the first 12 months, not include overnight time; and
(ii)in the second 12 months, not include overnight time at any location in excess of 100 kilometres from the Intervenors’ residence.
(10)That for the period of 24 hours immediately prior to the commencement of any time spent with the child, and during all such time spent, the mother be and is hereby restrained by injunction from ingesting, consuming or using or otherwise being under the influence of, alcohol and or any legal or illegal drug or substance, save and except for:-
(a)any legal medication prescribed for the mother by a registered medical practitioner, and taken or used by her strictly in accordance with such prescription; and
(b)any over-the-counter medication or pharmaceutical substance ordinarily sold in major supermarkets and taken or used by the mother strictly in accordance with the directions appearing on such medication or pharmaceutical substance.
(11)That the Intervenors:
(a)keep the mother advised at all times of the current residential address and telephone number of the children and advise the mother of any change thereto within seven (7) days of such change;
(b)advise the mother immediately in the event that the children, or any of them, suffers any serious illness or injury; and
(c) authorize:-
(i)any medical practitioner upon which the children, or any of them, may attend from time to time;
(ii)any school which the children, or any of them, may attend from time to time;
to communicate with the mother in respect to the children’s medical condition and/or requirements.
(12)That whilst the mother is spending time with the children pursuant to these orders, or in anticipation of spending time with the children, the mother shall:
(a)keep the Intervenors advised at all times of her current residential address and telephone number and advise the Intervenors of any change thereto within seven (7) days of such change;
(b)advise the Intervenors immediately in the event that the children or any of them suffer/s serious illness or injury; and
(c)authorize any medical practitioner upon which the children, or any of them, may attend from time to time, to communicate with the Intervenors in respect to the children’s medical condition and/or requirements.
(13)That the Mother be and is hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the Intervenors or any member of their household in the presence or hearing of the children, or any of them, or from permitting any other person so to do;
(b)discussing the proceedings with or in the presence or hearing of the children, or any of them, or permitting any other person so to do.
(14)That the Independent Children’s Lawyer and the Intervenors shall be at liberty to provide a copy of these Orders to any one or more of the following:
(a)the Principal or delegate of the Principal of the school attended from time to time by the child;
(b)any Medical Practitioner and/or allied health professional attending upon any one or more of the children and/or the Mother; and
(c)the relevant Regional Director of the Department of Human Services (Victoria) or Child and Family Services (New South Wales).
(15)That within fourteen (14) days of the date of these Orders, the Intervenors shall arrange an appointment for the children to meet with the Independent Children’s Lawyer so that the Independent Children’s Lawyer can explain the outcome of these proceedings to the children.
(16)That upon compliance with paragraph 15 hereof, the Order appointing the Independent Children's Lawyer be discharged.
(17)That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
(18)That all extant applications be otherwise dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Little & Little and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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 r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 7806 of 2011
| Ms Little |
Applicant
And
| Mr Little |
Respondent
And
Mr Weekes & Ms Polson
Intervenors
REASONS FOR JUDGMENT
INTRODUCTION
These are parenting proceedings in relation to the children B (aged 15), C (aged 13), D (aged 12) and E (aged 10).
The parties to the proceedings are the applicant mother, Ms Little, the respondent father, Mr Little, and the intervenors who are the maternal grandfather, Mr Weekes, and his wife who is the children’s step-maternal grandmother, Ms Polson.
The proceedings were commenced in the Federal Circuit Court of Australia upon the application of the mother in November 2015.
In July 2016 the intervenors filed an Application in a Case in which they sought orders that the children live with them and that the mother and the father spend time with the children upon specified conditions. The allegations raised by the intervenors included that the children had been exposed to family violence, abuse and neglect in the care of the mother and the father and that they had also been exposed to their parents’ abuse of alcohol and illicit drugs.
On 22 September 2016 following a contested interim hearing in the Federal Circuit Court orders were made by Judge Stewart that until further order the children C, D and E live with the intervenors and that the intervenors have sole parental responsibility for those children. A further order was made that until further order B live with the mother. Specific orders were made for B to spend time with the intervenors during school holiday periods. Orders were made for the father to spend time with the children at a contact centre, on such conditions as determined by that centre. Further, orders were made transferring the proceedings to the Family Court of Australia.
In December 2016, notwithstanding the interim orders made some three months earlier, B commenced living with the intervenors and his siblings. All of the children have continued to live with the intervenors since that time.
The matter was allocated to my docket in 2017 and on 9 June 2017 I made orders fixing the matter for final hearing to commence on 23 October 2017.
On 21 September 2017 upon application by the Independent Children’s Lawyer (“ICL”), I made orders that the proceedings be conducted in two court rooms, with the mother and the intervenors appearing by videolink from a separate court room. That order was made due to the serious allegations of family violence levelled against the father by the mother and the intervenors and the current intervention orders in place. As a result of the lack of court room availability on the originally listed date, I made further directions vacating the original trial date and fixing the matter for final hearing on 16 October 2017. I also made orders extending the time for the filing of the father’s trial affidavit material to 9 October 2017.
At the first day of the final hearing on 16 October 2017 counsel for the ICL made an application for the father’s Response to Initiating Application to be struck out and that the matter proceed on an undefended basis. That application was supported by the mother and the intervenors. The father opposed that application.
The ICL’s application was made as a result of the failure by the father to comply with the orders and directions of this Court and the Federal Circuit Court that he file affidavits in support of his Response to Initiating Application. It was submitted on behalf of the ICL that the father had filed no sworn evidence in the proceedings to date. Further it was submitted that the father had repeatedly failed to attend Court events.
In support of that submission I was referred to the orders of the Federal Circuit Court dated 7 December 2015, 3 March 2016, 26 May 2016 and 11 August 2016 which each required the father to file and serve any response and affidavits upon which he sought to rely. Notwithstanding those orders the father did not file any sworn affidavit in the Federal Circuit Court proceedings. Indeed, the only document filed by him in purported compliance with those orders is an unsworn and unsigned affidavit filed 10 August 2016.
I was also referred to orders I made on 9 June 2017 requiring the father to file and serve by 28 July 2017 “affidavits of evidence in chief of all witnesses including [the father] relied upon (noting that affidavits filed for previous hearings cannot be relied upon as evidence in chief”. The father filed no document in compliance with that order.
On 21 September 2017 I made further orders extending the time for the filing of the father’s trial affidavits to 9 October 2017. The father filed no document in compliance with that order.
The ICL also submitted that the father had failed to appear at previous Court events including hearings on 17 December 2015, 29 February 2016, 11 May 2016 and 21 July 2016. In light of the father’s history of non-compliance with Court orders and directions it was submitted that the father’s Response to Initiating Application should be struck out. The ICL submitted that the children were being adversely affected by the litigation which had been ongoing since 2015 and that they required an end to the proceedings.
The father opposed the ICL’s application. As at the first day of the trial on 16 October 2017, the only document filed by the father in compliance with my orders was his Response to Initiating Application filed 9 June 2017 in which he sought orders for equal shared parental responsibility, that the children live with him and that they spend time with the mother on specified conditions. He also sought injunctions against the mother and orders for the exchange of information regarding the children. The father also sought that the mother undertake supervised urine drug screens within 48 hours of the father requesting her to do so provided the testing not be requested more than monthly.
In opposing the application of the ICL the father submitted that he had attempted to file his trial affidavit but had had difficulty in accessing the Court portal. The documents he claims to have attempted to file were not served by him on the other parties.
During the course of discussion I raised with the father the prospect of granting a further short extension of time to file his affidavit on the basis that in the event of his non-compliance with that order there be an order that his Response to Initiating Application be struck out and the matter thereafter proceed on an undefended basis. The father conceded that given the history of the proceedings such order was appropriate in the circumstances of the case. Accordingly, I made orders as follows:
1.That all extant applications be adjourned for hearing before Johns J at 10.00am on 18 October 2017.
2.That by 3.00pm on 17 October 2017 the respondent husband file and serve any sworn affidavit upon which he seeks to rely in support of his Response to Initiating Application filed 9 June 2017.
AND THE COURT NOTES that the husband has informed the Court this day that he proposes to file one affidavit in compliance with this order.
3.That in the event that the Respondent husband fails to file any affidavits in accordance with Order 2 hereof:-
(a)The husband’s Response to Initiating Application be stuck out; and
(b)The other parties be entitled to proceed with their applications on an undefended basis.
I delivered brief ex-tempore Reasons for Judgment in respect of those orders.
The father filed no sworn affidavit in compliance with the orders made 16 October 2017.
On 18 October 2017 at 8.05am the father filed via the Court’s Portal a further Response to Initiating Application. Included in that document was the unsworn affidavit of the father originally filed 10 August 2016. That document does not address the issues raised in the affidavit material filed by the mother or the intervenors, nor does it address the issues raised in the Updated Family Report dated 1 September 2017. The Response to Initiating Application filed was unsigned.
Given the father's failure to comply with my orders of 16 October 2017, at the commencement of the proceedings on 18 October 2017 the ICL submitted that the matter ought proceed on the basis that the father’s Response to Initiating Application is struck out in accordance with those orders and that the hearing proceed on an undefended basis. The ICL contended that the matter ought proceed as any further delay was contrary to the best interests of the children.
In support of that submission counsel for the ICL noted that the children have been the subject of litigation since 2015. Significant concerns have been raised as to the children’s exposure to family violence, parental substance misuse and neglect. The ICL relied upon the observations of the Family Consultant, Ms H in the Updated Family Report dated 1 September 2017 at paragraph 132 that:-
…Lengthy family law process can be harmful to children due to the on-going distress and disruption these processes have on people’s lives...
It was submitted on behalf of the ICL that the children the subject of these proceedings have been exposed to the stresses of protracted litigation. It was submitted that the father had had ample opportunity to comply with directions and orders of the Court and to present evidence to support his Response to Initiating Application. As noted above, at the hearing before me on 16 October 2017 the father had indicated that he had prepared an affidavit but that due to difficulties in accessing the Court Portal had been unable to file that document. It was in those circumstances that I extended time for him to file the documents. The extension of time meant that even if he could not access the Court Portal he had the opportunity to file his affidavit in the Court Registry. He did not do so.
Having regard to the history of the proceedings and my concerns as to the impact of ongoing Court proceedings on the children, on 18 October 2017 I made further orders that the father’s Response to Initiating Application be struck out and that the matter proceed on an undefended basis. I delivered ex-tempore Reasons for Judgment with respect to those orders.
Following the determination of that application, a further application was made on behalf of the ICL that the father not be permitted to cross-examine the witnesses in the proceedings. The positon of the ICL was that the father should not be permitted to cross-examine witnesses in circumstances where he had no application before the Court and had filed no affidavit material in the proceedings. It was submitted on behalf of the ICL that there would be little utility in those circumstances in allowing the father to cross-examine the witnesses relied upon by the ICL and the other parties in the proceedings.
I informed the father of the application made and reminded him as to the purpose of cross-examination, that it was an opportunity to test and challenge evidence with which he disagrees. I invited the father to make submissions in the event that he opposed the order sought by the ICL. Rather than make any submission with respect to that issue the father informed the Court that he was “dismissing [him]self” as he wished to lodge an appeal. He then proceeded to leave the courtroom and did not return. As a consequence, the balance of the hearing proceeded in the father’s absence.
These are my Reasons for Judgment with respect to the parenting applications of the applicant mother and the intervenors.
Background
The applicant is the mother. She is aged 39 years and is engaged in home duties. She lives with her partner, Mr J in G Town. The mother represented herself at the hearing.
The father, who was the respondent in the proceedings, is Mr Little. He is aged 40 years. He also resides in G Town. The father has one child from a previous relationship, Ms K who is now over the age of 18 years and lives independently.
The intervenors are Mr Weekes, who is the maternal grandfather. He owns and operates a business with his wife, Ms Polson in L Town, New South Wales. Ms Polson is the other intervenor. She has been married to the maternal grandfather since 2001. The intervenors represented themselves in the proceedings.
The mother and the father commenced cohabitation in 1999 and married in 2005. They separated in July 2011 and following that separation the father commenced proceedings in the Federal Circuit Court at G Town. The mother and the father subsequently reconciled and the father withdrew his application before the Court.
Final separation occurred in 2014. At the time of separation, B was aged 11 years, C nine years, D eight years and E six years.
Upon the parties’ separation the children lived with the mother and spent time with the father sporadically.
In November 2015 the mother commenced the current proceedings, making an application for a recovery order in circumstances where the father had removed the children from the care of the intervenors without consultation with the mother. At that time the mother was undertaking treatment for cancer and the children were being cared for by the intervenors.
In December 2015 Judge Curtain made a recovery order that the children be delivered to the mother or such other place as the mother and the person affecting the recovery agree to be appropriate. The proceedings continued in the Federal Circuit Court until September 2016 when orders were made by Judge Stewart transferring the proceedings to this Court.
As noted above, since September 2016 C, D and E have lived with the intervenors pursuant to Court orders. B has lived with the intervenors since December 2016.
Documents relied upon
The applicant relies upon the following documents:-
·Amended Initiating Application filed 7 July 2017;
·Affidavit of the applicant filed 7 July 2017;
·Affidavit of Ms Weekes filed 7 July 2017; and
·Affidavit of Mr J filed 7 July 2017.
The intervenors rely upon the following documents:-
·Case outline document filed 11 October 2017;
·Response to an Application in a Case filed 17 August 2017
·Affidavit of Mr Weekes filed 17 August 2017;
·Affidavit of Ms Polson filed 17 August 2017; and
·Affidavit of Ms K filed 17 August 2017.
The Independent Children's Lawyer relies upon the following documents:-
·Amended outline of case document filed 11 October 2017;
·Section 11F Memorandum prepared by Family Consultant N dated 12 May 2016;
·Family Report prepared by Family Consultant Ms H dated 22 December 2016;
·Updated Family Report prepared by Family Consultant H dated 1 September 2017; and
·Affidavit of Ms M filed 5 September 2017.
Orders sought
The ICL seeks orders in the terms of the final order sought set out at pages 2 to 5 inclusive of the Amended Case Outline document. In summary those order seek:-
·That all previous orders relating to the children be discharged;
·That the intervenors have sole parental responsibility for the children;
·That the children live with the intervenors;
·That the father spend no time with the children;
·That pursuant to s 68B of the Family Law Act 1975 (Cth) the father be restrained from communicating with or attending at or within 200 metres of the residence, place of work or tuition of:-
(a) The mother;
(b) The intervenors; and
(c) The children.
·That the intervenors be restrained from bringing the children into contact with the father;
·That the mother be restrained from bringing the children into contact with the father;
·Subject to the mother:-
(a) Enrolling in and completing an accredited course in parenting effectiveness and providing a certificate of completion for the same to the intervenors; and
(b) Producing two consecutive supervised urine drug screens which are clear of illicit substances, such supervised drug screens to be completed within 48 hours of being requested to do so in writing including by SMS text message or email by the intervenors,
the children spend time with the mother as agreed in writing between the intervenors and the mother provided that upon time commencing such time shall:-
(a)In the first 12 months not include overnight time; and
(b) In the second 12 months not include overnight time at any location in excess of 100 kilometres from the intervenors’ residence.
·In the 24-hour period immediately prior to the mother’s time with the children she be restrained from ingesting, consuming or using or otherwise being under the influence of alcohol and/or any legal or illegal drug or substance save and except for:-
(a) Any legal medication prescribed for her by a registered medical practitioner and taken or used by her strictly in accordance with such prescription; and
(b) Any over-the-counter medication or pharmaceutical substance ordinarily sold in major supermarkets and taken or used by the mother strictly in accordance with the directions appearing on such medication or substance;
·The intervenors shall keep the mother informed of their current residential address and telephone numbers and advise the mother of any change thereto, inform the mother immediately in the event that the children suffer any serious illness or injury and authorise any medical practitioner upon which the children attend or any school at which they attend to communicate with the mother in respect of the children’s medical conditions and/or requirements;
·When the children are in her care the mother shall keep the intervenors informed of her current residential address and telephone numbers and advise the intervenors of any change thereto, inform the intervenors immediately in the event that the children suffer any serious illness or injury and authorise any medical practitioner upon which the children attend or any school at which they attend to communicate with the intervenors in respect of the children’s medical conditions and/or requirements;
At the commencement of the hearing, the mother and the intervenors each confirmed that they sought orders in the terms of the orders sought by the ICL.
During closing submissions, the second intervenor, Ms Polson submitted that in addition to the orders sought in the ICL’s case outline, consideration should be given to an order permitting the father to forward the children cards and gifts. That proposal was opposed by the mother, the first intervenor and the ICL.
Given that the mother and the intervenors were representing themselves, Counsel for the ICL helpfully agreed to present his case first. This enabled both the mother and the intervenors to observe how submissions are made prior to the opening of their case. None of the parties required any of the witnesses in the proceeding for cross-examination.
Legal Principles
Section 60B(1) of the Family Law Act1975 (Cth) (“the Act) sets out the objects of Part VII of the Act, to ensure 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.
Section 60B(2) of the Act sets out the principles underlying those objects. They 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).
The parties in this proceeding seek parenting orders as defined pursuant to s 64B of the Act. That is, they seek orders with respect to:-
(a) With whom the children live;
(b) With whom the children spend time; and
(c) The allocation of parental responsibility for the children.
Section 65C of the Act sets out who may apply for a parenting order. That section notes that a parenting order in respect of a child may be applied for by either or both of the child’s parents, a grandparent of the child or any other person concerned with the care, welfare or development of a child.
I am satisfied that the mother and each of the intervenors have standing to seek parenting orders. Mr Weekes is a grandparent of the children. Ms Polson, as the second intervenor, is the wife of the maternal grandfather. Ms Polson and Mr Weekes married in 2001. The children have established relationships with Ms Polson and indeed, the children have been living in her household with the maternal grandfather since December 2016. She joins with the maternal grandfather to seek a continuation of the existing arrangements for the children. I am satisfied having regard to the evidence of the applicant, the intervenors, and that of the Family Consultant, Ms H as set out in the two family reports prepared in these proceedings, regarding her relationship with and involvement in the children’s lives, that the second intervenor is a person concerned with the care, welfare and development of the children and as such has standing to make application for parenting orders.
In deciding a particular parenting order the best interests of the child is the paramount consideration (s 60CA of the Act). Section 60CC(2) and (3) of the Act set out the primary and additional considerations for the court in determining what is in the child’s best interests. I will return to the detail of the primary and additional considerations below. There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA of the Act). The presumption relates to the allocation of parental responsibility. It does not relate to the time the child spends with each parent. Where there are reasonable grounds to believe that a parent of a child has engaged in abuse of the child, or family violence the presumption does not apply (s 61DA(2) of the Act). Further, the presumption may be rebutted if the court is satisfied that it would not be in the child’s best interests for the parents to have equal shared parental responsibility for the child (s 61DA(4) of the Act). For the reasons set out below I am satisfied that the presumption of equal shared parental responsibility is rebutted and it is not in the children’s best interests that there be orders for the mother and the father to have equal shared parental responsibility.
In determining the appropriate parenting order in proceedings involving parties interested in the care welfare and development of the children, the best interests of the children is the paramount consideration (s 60CA of the Act). That this is so was confirmed by the Full Court in the decision of Aldridge and Keaton (2009) FLC 93-421 where the Full Court in considering whether the 2006 amendments to the Act alter the principle that applied previously said:-
75.While there can be no doubt that the amending Act has placed greater emphasis on the role of both parents in the upbringing of their children, as we are presently advised, all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant. Our reasons for upholding this view include the following matters:
·the unaltered provision dealing with best interests (s 60CA) and the positioning of the section in the Act;
·the recognition in s 65D(1) that ultimately a court should make such parenting order as it thinks proper; and
·that no provision was included in the Act suggesting greater or lesser weight should be given to any particular applicant.
…
79.In summary, in dealing with any parenting application by a person interested in the care, welfare or development of a child, a court will determine that application applying the relevant provisions of Pt VII to determine whether making (or not making) a parenting order would be in the child’s best interests.
The Full Court confirmed in the decision of Malcolm and Munroe (2011) FLC 93-460 that the s 60CC considerations are relevant in proceedings involving parents and non-parents. That position was confirmed by the Full Court in Valentine and Lacerra and Anor (2013) FLC 93-539.
The relevant standard of proof is the balance of probabilities. Without limiting the matters that the Court may take into account, s 140(2) of the Evidence Act 1995 (Cth) provides that in applying that standard of proof, the Court must take into account the nature of the cause of action or defence, the nature of the subject matter of the proceedings and the gravity of the mattes alleged.
Findings are made on the balance of probabilities having regard to the evidence before the Court.
The issues
The issues in this matter, as identified by the parties in their affidavits and the family reports, may be summarised as follows:-
·Allocation of parental responsibility;
·Whether the children are at risk of harm in the care of the parties;
·With whom the children live; and
·With whom the children spend time and whether such time should be supervised.
The issues can most conveniently be discussed within the s 60CC considerations. I will first consider the primary considerations under s 60CC(2) of the Act.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents;
Ordinarily it is in a child’s best interests to have a meaningful relationship with both parents. The question of what is a meaningful relationship was considered by Brown J in Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518. At paragraph 26 of that judgment her Honour concluded that a meaningful involvement is one which is important, significant and valuable to the child.
In McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405 the Full Court considered the interpretation of s 60CC(2)(a) and concluded that:-
119. … the preferred interpretation of the benefit to a child of having a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents ...
…
122. In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
(Original emphasis)
The three younger children have lived with the intervenors since September 2016 and B has lived with them since December 2016. Since that time they have had sporadic time with the mother at her home in G Town and also at the intervenors’ home in L Town. The children have also communicated with the mother by telephone on an ad hoc basis.
Notwithstanding the orders of 22 September 2016 that the father spend time with C, D and E at a contact centre, the father has spent no time with the children in accordance with those orders. The father has spent some limited time with the children in G Town over Christmas 2016 and at Easter 2017.
The two family reports of Ms H dated 22 December 2016 (“the first family report”) and 1 September 2017 (“the second family report”) confirm that the children have established relationships with the mother and the father.
The most significant issues in these proceedings are the allegations that the children have been exposed to family violence, substance abuse and neglect when in their parent’s care. In considering the benefit to the children of having a meaningful relationship with their parents it will be necessary for the Court to consider and make findings with respect to those allegations.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
These proceedings commenced upon the mother’s Initiating Application filed in November 2015. Accordingly the provisions of s 60CC(2A) of the Act apply and therefore in considering the matters in s 60CC(2) of the Act, the Court is required to give greater weight to the factors set out in s 60CC(2)(b) of the Act.
It is submitted on behalf of the ICL that the children have been exposed to significant family violence perpetrated by the father against the mother during the period of their relationship. It is also submitted by the ICL that the children have been exposed to neglect by the mother. The position of the ICL is that the children should continue to live with the intervenors to ensure that the children are protected from physical or psychological harm arising from their exposure to such abuse, neglect and family violence.
In support of that submission the ICL referred to and relied upon the unchallenged evidence contained in the mother’s affidavit filed 4 November 2015 (Exhibit ICL-2). In that affidavit, the mother deposes that she has been subjected to violence and abuse at the hands of the father since almost the commencement of their relationship. At paragraph 9 of that affidavit the mother deposes that the father was first violent towards her in July 1999. She alleges that the father was verbally abusive and pushed her on the occasion of her twenty-first birthday. The mother’s evidence is that the violence perpetrated by the father escalated during the course of the relationship. For example at paragraph 12 of that affidavit she deposes that in November or December 2000 following an argument with the father she was left unconscious, that her ribs were black from bruising and that the father’s friend told the father that he was “lucky you didn’t kill her”.
At paragraph 42 of that affidavit the mother deposes that in August 2009 she was woken by the father one evening to find him attempting to suffocate her with his hand. She deposes that he then raised his fist and punched her in the face causing blood to spatter across the wall. She deposes that he hit her with heavy blows to the head causing her eyebrow to split open. She also had blood streaming from her nose. As a result of the injuries sustained by the mother during that incident, the mother deposes that she was unable to attend the children’s school for a two to three week period because of the bruising to her face and the blood in her eyes.
The mother also deposes that she was subjected to violence at the hands of the father in the children’s presence. At paragraph 63 of that affidavit the mother deposes to an incident that she alleges occurred on 14 January 2014. She there deposes that the father became aggressive and verbally abusive towards her after an argument about arrangements for the family dinner. After the father had returned from a fast food store an argument ensued. The mother deposes that the father pushed her into the coffee table in front of the children, that the father smeared food on her face and arms and yelled at her, that he attempted to punch her whilst she was comforting the children and that the father missed the mother and accidentally punched the child C. The mother alleges that the father followed her into the kitchen, pushed her against the kitchen bench and sexually assaulted her in the children’s presence.
The father has filed no sworn affidavit responding to the mother’s allegations. The unsworn affidavit filed by the father on 10 August 2016 does not respond to the many detailed allegations of family violence contained in the mother’s affidavit.
It was submitted on behalf of the ICL that the observations of the Family Consultants who have interviewed the children support the contention that the children have been exposed to serious and ongoing family violence in their parents’ care. The children have been interviewed on three occasions by family consultants, the first on 11 May 2016 by Family Consultant Ms N for the purposes of a Child Inclusive Conference Memorandum to Court (“the Memorandum”) and on the other occasions by Family Consultant Ms H for the purposes of the first family report and the second family report. In both the Memorandum and the first family report the children disclosed incidents of family violence between the mother and the father. Ms H did not raise with the children the history of family violence when interviewing the children for the second family report; rather her discussion with the children focussed on their experiences since they have been living with the intervenors.
In the Memorandum, Ms N reports that C stated that:-
…she remembers daily fights when her parents were together and talked vividly about hearing her mother screaming during the fight in January 2014. She stated that she tried to get all the children in the bedroom after witnessing her father ’smash’ her mother’s head into the wall. She stated she had seen her father ‘smash’ her mother’s head into the wall and into a mirror a number of times and on one occasion the children all left the home with her mother after he broke a mirror with her mother’s face causing cuts.
Ms N also reports that C clearly stated to her that:-
…she did not want to see her father again and that all 4 of the children are scared of their father and what he may do to them and she does not feel safe with him.
At the time of that report C was aged 12 years.
In the Memorandum Ms N also notes D's statements regarding violence between his parents. He too referred to the incident in January 2014. Ms N reports that:-
…He described his mother’s face being pushed into a table and causing injuries to her eye. He stated that [C] and [E] went to his mother to help her but that he and [B] were too scared to move and stood still...
Ms N also reports that D stated that he had seen other “big fights” and that he described his father as going “schitz” on occasions. D was aged 10 years and eight months at the time of that interview.
Ms N also noted E's report of the fight he observed between the parents in January 2014. Ms N reports that:-
…He stated that both parents got hurt but he was not sure how his father was hurt but that his mother was hit in the head by her father [sic] with a motorbike helmet.
Ms N observed that the children’s presentation was highly concerning. She described them as being hypervigilant and at times almost “robotic” in their responses regarding the father. She considered the children’s presentation when describing the fight between the parents which occurred in January 2014 was suggestive that the children had suffered significant trauma and she considered that the children required therapeutic intervention.
The father did not participate in the preparation of the Memorandum and at the time of its preparation he had filed no material at court.
The concerns raised by Ms N are echoed by Ms H in the subsequent family reports. The three younger children made similar reports to Ms H during her interviews with them for the purposes of the preparation of the first family report. At paragraph 39 of the first family report, Ms H notes:-
[E] acknowledged that he had seen his parents arguing and that he had seen his father hurting his mother. He said on one occasion his father hurt his mother because she had ordered the wrong amount of Kentucky Fried Chicken. [E] said that when his father hurt his mother he and [C] would try to help their mother but that [D] and [B] were too scared…
At paragraph 41 of the first family report Ms H noted that E presented in an open manner during interview which suggested that his reports were accurate representations of his experiences and views.
Similar reports were made to Ms H by C during interview. At paragraph 56 of the first family report she notes that C stated that when her parents were living together they argued on a daily basis and that while she had never seen her mother hurt her father, she often saw her father hurt her mother. Again at paragraph 59 Ms H observed that C’s frank and detailed account suggested they were the product of her own experiences and views.
Ms H is an experienced Family Consultant. In addition to her work in the Court she has experience working at Family Mediation and with the Department of Human Services. She has had the advantage of observing this family for the preparation of two family reports in 2016 and 2017. The reports prepared by her for these proceedings are thorough and detailed. There is no challenge to her qualifications or the evidence contained in her reports. Accordingly, I accept that evidence.
The statements made by the children to both Ms N and Ms H support the contentions of the ICL and the mother that the children were exposed to significant family violence prior to the separation of their parents. The disclosures by the children to the Family Consultants of that violence, particularly the incident that occurred in January 2014, is consistent with the evidence of the mother as contained in Exhibit ICL-2. The observations of both Family Consultants is that the children were open and frank in interview and given that presentation, the statements made by them were likely to reflect their experience.
The reports of the children to the Family Consultants of family violence by the father towards the mother is also consistent with the evidence of the father’s adult child, Ms K as set out in her affidavit filed 17 August 2017. In her affidavit Ms K deposes as to her experience of the father being verbally and physically abusive towards the mother in her presence as well as in the presence of the children the subject of these proceedings. She also deposes as to the neglect in the mother and father’s household, describing the house as being a “dirty mess” where laundry was not done, the kitchen not cleaned, the younger children not having their nappies changed or being bathed and there was no food in the fridge. Ms K deposes that at the age of seven, the younger children were left in her care whilst the mother and father went out. At paragraph 24 of that affidavit Ms K deposes that the house was “continually smashed up, ie [sic] windows broken, doors pulled from hinges”. She also deposes as to both the mother and the father drinking alcohol to excess in the presence of the children. I accept Ms K’s unchallenged evidence as to her observations of the family violence and neglect of the children by the father and the mother.
There is no challenge to the evidence of the Family Consultants regarding the children’s exposure to and experience of family violence perpetrated by the father against the mother. In the circumstances, I accept that evidence. Having regard to that unchallenged evidence, I am satisfied that the children need protection from exposure to family violence perpetrated by the father.
The ICL contends that the children have suffered from neglect whilst in their parent’s care. The evidence of the intervenors supports that contention. At paragraph 7 of his affidavit filed 17 August 2017 the maternal grandfather deposes as to his concerns with respect to the general living conditions in the home occupied by the mother and father and the children. He deposes that he made dozens of visits to see the children during the period of cohabitation between the mother and father and that on the majority of such visits there was little or no food in the refrigerator. He deposes as to the state of the home, noting that the floors were unswept, the carpets covered in food stains as were the lounge, and that the house and chairs smelt strongly of stale baby formulas and food. He deposes that the children’s nappies were often soiled and wet, hanging loosely down their legs, that their bedrooms were in total disarray with clothing and dirty nappies on the floor. Further, at paragraph 8 of that affidavit the maternal grandfather deposes that even after their parents’ separation the children’s living environment did not change. He deposes that the front and rear yards were overgrown such that the children could no longer play outdoors, that the house was not maintained and had broken windows, a broken heater and that the oven and hotplates were not working.
The evidence of Ms Polson in her affidavit filed 17 August 2017 paints a similar picture as to the children’s living circumstances when in their parents’ care. At paragraph 25 she deposes that the mother failed to provide school books or uniform for B. With respect to C, at paragraph 26 she deposes that she arranged for the replacement of C’s broken spectacles. Similarly with respect to D, she deposes at paragraph 27 that his school supplied him with school shoes as his previous pair of shoes were being taped together by the school.
In the first family report Ms H notes E’s description of living with the mother at paragraph 37 as being “a bit messy” because if he tried to lie on the floor he felt “itchy”.
Later in that report Ms H notes that the documents produced under subpoena from B’s school indicate that he was attending school out of uniform and that he has continued to wear his physical education uniform or shorts even in the winter months. B confirmed to Ms H that the school had recently supplied him with a school uniform.
At paragraph 71 of the first family report Ms H notes that the Child Protection Practitioner, Ms O, had reported that whilst the mother had initially engaged with protective services, following a positive drug screen for amphetamines, the mother ceased engaging with those services. Neither the mother nor the father attended appointments for the preparation of the first family report.
In the second family report Ms H notes that the documents produced under subpoena indicate concerns as to the children’s level of school attendance in G Town, the parents’ capacity to provide them with school lunches, school uniforms and other equipment necessary for school attendance.
At paragraph 28 of that report, Ms H also notes the range of medical assessments and treatment received by the children since they commenced living with the intervenors. For example, since the children commenced living with the intervenors in December 2016, both C and D have been provided with glasses, and E has been diagnosed with colour-blindness. In addition, C is awaiting an appointment with the P Hospital for assessment as to a suspected scoliosis.
At paragraph 104 of the second family report, Ms H reports of B’s wish to remain living with the intervenors at L Town and noted that he appreciated the “material support” provided by the intervenors.
Further, at paragraph 137 of the second family report Ms H notes:-
In relation to the children’s needs, each parent’s current state of technical homelessness raises concern about their capacity to provide for the children’s basic material needs. In addition, their limited acknowledgement or denial of the children’s additional needs suggest that if the children were returned to the care of either parent, neither [the father] nor [the mother] would maintain the children’s attendance at the physical and mental health services that are currently in place…
There was no challenge to the evidence of Ms H. Having regard to that evidence, I am satisfied that there is a real need to protect the children from neglect when in the care of the mother and the father.
As well as issues of parental abuse and neglect the ICL has also raised concerns as a result of the mother and father’s use of illicit drugs. The mother denies the allegations of the intervenors regarding those matters in her affidavit filed 7 July 2017 (“the trial affidavit”). Notwithstanding those denials, at paragraph 85 of Exhibit ICL-2 the mother admits having used the drug ice and at paragraph 42 of the trial affidavit she admits that she is currently undertaking drug and alcohol treatment through Q Group. She also deposes that she is awaiting commencement of a parenting program with R Group. Further, the mother joins with the intervenors in seeking orders that the children live with them and that they have sole parental responsibility. She also consents to the proposal that she submit to drug screening. Having regard to the mother’s evidence and her concessions made with respect to drug screening, I am satisfied that there is a need to protect the children from exposure to the mother’s use of illicit substances.
I must now consider the additional considerations pursuant to s 60CC(3) of the Act.
(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;
In the second family report Ms H, during the course of interviewing the children, canvassed the views of each of them as to their current living arrangements as well as to their views with respect to future arrangements. With respect to B, Ms H noted at paragraph 104 of the second family report that he stated that he wished to remain living primarily with the intervenors in L Town. Further, she noted at paragraph 105 of that report that currently B does not wish to spend any time with the mother. That view was based on B’s perception that the mother continues to misuse substances with her current partner and further, he describes the mother’s current partner as “unpredictable” and “a big scary individual”. As to his relationship with the father, at paragraph 106 of the second family report B is noted as expressing a view that he does not wish to spend time with the father at least for the period of the current intervention orders which he believed was for a period of two years.
At paragraph 110 of the second family report Ms H observed B to be a mature young man who has had to manage an extremely difficult family situation. I accept Ms H’s evidence as to her observations of B and her report of his views. Having regard to B’s age and maturity, I am satisfied that significant weight should attach to B’s views.
During interview, C stated to Ms H that she would prefer to live primarily in G Town and that she would like to spend time with her father. However, she acknowledged to Ms H that whilst in G Town she had been bullied at school. At paragraph 92 of the second family report Ms H notes that C described living with the intervenors as “kind of hard”.
Ms H’s assessment of C’s views is set out at paragraph 97 of her report. There she notes that C may not have sufficient insight to appreciate the support she is provided in the care of the intervenors. Further, she notes that there are concerns that the mother may not currently have the personal or material resources necessary to provide for C’s needs. That evidence is unchallenged and the mother supports the positon that C should remain in the care of the intervenors notwithstanding C’s views.
In the decision of Bondelmonte v Bondelmonte (2016) 259 CLR 662 the High Court noted at [34]-[35] in relation to the child’s wishes that:-
The focus placed by the father upon the prescribed consideration stated in s 60CC(3)(a) tended to elevate the views expressed by the child to something approaching a decisive status. In some cases, it may be right, in the exercise of the primary judge’s discretion, to accord the views expressed by a child such weight, but s 60CC(3)(a) does not require that course to be taken. They are but one consideration of a number to be taken into account in the overall assessment of a child’s best interests.
The terms of s 60CC(3)(a) itself may be taken to recognise that, whilst a child’s views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child’s age or maturity and level of understanding of what is involved in the choice they have expressed…Section 60CC requires that attention be given by the court to these matters.
Ms H notes C’s desire to return to live in G Town, as well as the reality that those views do not take into account the limitations of the mother (as identified by Ms H) to appropriately care for the children. I accept that evidence. As was noted by the High Court, C’s expressed views are not determinative of the issue but are but one consideration in assessing what is in the children’s best interests. I am satisfied having regard to Ms H’s evidence that notwithstanding C’s views, little weight should attach to them given her limited insight and understanding as to the mother’s parenting capacity.
Ms H’s observations of D are set out at paragraphs 77 to 86 of the second family report. She notes D’s very positive description of his school experiences in L Town, that he has made lots of new friends and that he is learning more in that setting. She also reports that D is engaged in a range of extra-curricular activities, including cross-country running and football. At paragraph 82 of the second family report she notes D’s views as follows:-
[D] said he enjoyed living with [the intervenors] and would prefer to remain living primarily with them. However, he said he would like his mother to live closer to the children as then he hoped he could spend time more frequently with her. [D] considered that he would like to spend time with [the mother] in the school holidays…
At paragraph 83 of the report Ms H observes the insight demonstrated by D as to the change in his views between the first and second family report. She notes:-
He reported that when he was told he would be going to live with his maternal grandparents he cried. He said that a few days ago he again cried at the prospect that he might have to return to living in [G Town].
In conclusion, at paragraph 86 Ms H reports that D’s accounts of the transition to living with the intervenors supports the view that that change has been highly beneficial for him. I accept Ms H’s evidence as to D’s views and as to the positive impact upon him of the change in his living arrangements.
Ms H’s observations of E are set out at paragraphs 68 to 76 of the second family report. She notes that his presentation at interview was reserved. At paragraph 73 of that report Ms H notes E’s description of living with the intervenors as “Not that bad”. He was able to describe the good aspects of living in L Town, including being able to kick a football whenever he wished and also enjoying fishing with his maternal grandfather. He also reported as to the boundaries placed around the children’s use of technology and that the children were required to complete household chores, which he enjoyed. In relation to the mother, E described her and her partner as nice, that the mother looked after the children and that she “bought them stuff”. He expressed a preference to return to living with the mother in G Town and stated he did not know how he would feel if he was required to remain living with the intervenors.
At paragraph 76 of the second family report Ms H noted the strong affectionate bond E shares with the mother. However she also noted that:-
…The discrepancies between his accounts and those of the other children raised concerns that his desire to live primarily with [the mother] may have influenced the accounts he provided.
I accept the evidence of Ms H with respect to E’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);
The children have not been observed with the father. That this is so is due to his failure to attend at interview for the preparation of the Memorandum and the first family report. At the time of the second family report there was no observation of the father with children due to the current intervention order in place to protect the children. Further, Ms H noted that on the day of interview for the second family report the father presented in a distressed state.
The evidence of Ms H indicates that the children’s relationship with the father is largely shaped by their exposure to family violence when in his care. As noted above, B was clear in his view that he did not wish to spend time with the father, at least for the period of the current intervention order.[1]
[1] Family Report dated 1 September 2017, par 106.
As to C’s relationship with her father, in discussion at paragraph 93 of the second family report it was noted that she had last spent time with her father at Easter 2017. C initiated that contact as she required assistance from her father to drive her to her friend’s house. As noted above, in the Memorandum and first family report C reported exposure to significant family violence at the hands of the father.
D’s attitude to the father is set out at paragraph 85 of the second family report. It was there noted that D last spent time with the father at Christmas 2016 but that he had no clear recollection of that occasion. He expressed a desire to spend time with the father in the future and reported that he had enjoyed spending time with the father when there were arrangements for changeovers to occur at McDonalds. It was reported that D hoped to see his father on his birthday. In the Memorandum, D is reported as describing exposure to significant family violence perpetrated by the father. Ms H at paragraph 78 of the second family report noted that due to the potential harmful impacts and the limited benefits of further discussion, the historical issues of family violence were not raised with D during the preparation of that report.
E’s views of his relationship with the father are set out at paragraph 72 of the second family report. It is there noted that E last saw his father on the first day of school 2017 when the father attended L Town and is alleged to have circled the school in his car. E’s account of that incident is that he was fearful that the father “would take him” on that occasion. E’s attitude to spending time with the father is reported to be that whilst he would like to spend time with him in the future he would prefer for that time to be supervised.
As to the children’s relationship with the mother, during observation of her with the children for the purposes of the second family report, Ms H noted that the children were responsive to her and that they have an affectionate relationship with her. All of the children were observed to hug their mother at the conclusion of the observation session.[2]
[2] Ibid, par 116.
Similarly, the observation of the intervenors with the children indicates that the children have positive and affectionate relationships with them.[3]
[3] Ibid, par 119.
I accept the evidence of Ms H as to the nature of the children’s relationship with the parents and the intervenors.
(c)the extent to which each of the child’s parent 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 obligation to maintain the child
It was submitted on behalf of the ICL that the engagement of the mother and the father in the care of the children has been intermittent at best.
As noted above, upon separation the children remained in the care of the mother. Between January 2014 and September 2016 the children had occasional time with the father. Over the course of that period, significant issues emerged as to the mother’s capacity to care for the children. Those issues included the mother’s ability to ensure that the children attended at school, that they were appropriately attired for school and had the necessary resources for attendance at school. In addition, significant concerns have been raised as to her management of the children’s health needs, for example, in ensuring that C and D had glasses.
The children have attended upon health professionals and counsellors since living with the intervenors. As a result of such attendances, E has been diagnosed with colour-blindness and C is attending appointments at the P Hospital for assessment with respect to a suspected scoliosis.
Since the commencement of these proceedings the participation of the mother in the proceedings has been sporadic. For example, she failed to attend appointments for the preparation of the first family report.
At the conclusion of the first family report Ms H recommended that the children commence attendance at counselling in order to address the impact of the children’s exposure to family violence and substance abuse in their parents’ care. The intervenors arranged for the children to attend counselling following the release of the first family report.
In her second family report, Ms H observes that all of the children are engaged in those counselling services and as a result have been assessed to be making good progress. Indeed at paragraph 125 of the second family report Ms H notes the reports of Mr S, the counsellor for B, D and C that:-
…the children had all progressed significantly in the time they had been in the care of [the intervenors]. [Mr S] expressed admiration for the care provided by [the intervenors], and the effort involved in meeting the needs of the children. For example he explained that the travelling time between [L Town] and [T Town] was one hour and each time [Ms Polson] brought the children to counselling, it was a four hour plus round trip.
At paragraph 127 of the second family report Ms H notes:-
[Mr S] considered that the children are currently in a stable and nurturing environment that has facilitated their ability to begin the healing process. However he expressed concern about the likely negative impact of another significant change in living arrangements on the children’s well-being.
The intervenors have ensured that the children are enrolled in and attend school and that they have all necessary resources to enable their attendance at school. The unchallenged report of Ms H and evidence of the intervenors, which I accept, indicates that the children are engaged in appropriate extra-curricular activities and that all of their physical, emotional and psychological needs are being appropriately met.
The assessment of the children’s counsellor is that since the children have been living with the intervenors the children have settled well and are achieving positive gains in their social and academic pursuits. Having regard to that evidence I am satisfied that the intervenors have shown commitment and dedication to participate in and support the children in all aspects of their lives. I am satisfied that where necessary, the intervenors have made appropriate decisions to ensure that the children have the medical and social supports they need in order to fulfil their potential.
As discussed previously the father has spent sporadic time with the children since the commencement of these proceedings. Notwithstanding orders made in September 2016 that he spend time with the children at a contact centre, such time has not occurred. The father has had opportunity to engage in these proceedings to pursue his application for time with the children. As noted above he has not filed documents in compliance with Court orders and further has on occasion failed to attend Court events. Significantly he did not attend the appointments for the preparation of the Memorandum or the first family report. Having regard to those matters, I am satisfied that the father has not availed himself of the opportunity to participate in making decisions regarding the children or to spend time and communicate with them.
Since the children commenced living with the intervenors, they have assumed responsibility for meeting the children’s material needs. There is no evidence before the Court as to any contribution made by either the mother or the father towards the children’s financial support since they commenced living with the intervenors.
(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;
The orders sought by the ICL, the mother and the intervenors will see a continuation of the arrangements which have been in place since December 2016. The orders sought will provide the mother with an opportunity to spend time with the children on a regular and increasing basis provided that she completes an accredited parenting course and submits to supervised drug screening. Having regard to the history of the matter, I am satisfied that such arrangements are appropriate and in the children’s best interests.
In circumstances where the father has elected not to participate in the proceedings in any meaningful manner, having filed no affidavits in support of his application and further having left the Court during the conduct of the trial, there is little utility, in my view, in attempting to craft orders to enable him to spend time with the children.
(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;
Currently the mother resides in G Town and the intervenors and the children live in L Town. The travel time between those towns is approximately two hours.
Historically the intervenors have supported the children’s relationship with their parents and others in the G Town region and have been responsible for transporting the children to G Town when required. In addition, the mother and her partner have stayed in a caravan on the intervenor’s property to enable the mother to spend time with the children. Given the level of support provided by the intervenors to date, I am satisfied that notwithstanding the distance between them and the mother that they will continue to support and facilitate the children’s relationship with the mother.
None of the parties seek orders that the father spend time with the children.
(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;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The intervenors have had the primary care of all the children since December 2016. The second family report indicates that the children are thriving in the care of the intervenors, that they are engaged in school and extra-curricular activities and that their health needs, including their need for emotional support and counselling are being attended to. Having regard to that evidence, I am satisfied that the intervenors have demonstrated a strong commitment to their role in caring for the children. There is no challenge to the capacity of the intervenors to continue to meet all of the children's physical, emotional and intellectual needs.
As noted above, I have significant reservations as to the capacity of the father to regulate and moderate his behaviour towards the mother and in the presence of the children. Serious allegations are made as to his abuse of alcohol and illicit substances. The father denied those allegations at interview with Ms H for the second family report. At paragraph 34 of that report Ms H noted that the father had a strong odour of stale alcohol and peppermint at interview. The father’s explanation for his presentation was that he had consumed two glasses of beer two evenings prior to the interview and that he had changed his clothing and showered since the last occasion that he consumed alcohol. In my view the explanation proffered by the father when challenged as to his presentation at interview was implausible. There is no challenge as to Ms H’s observations of the father’s presentation at interview and I accept that evidence.
At paragraph 53 of the second family report, Ms H states that the father presented himself as the victim of biased, uninformed or corrupt institutions. When discussing the allegations of family violence between the parents, the father alleged that Victoria Police had demonstrated biased processes against him due to the maternal grandfather’s previous employment.
At the time of the interviews for the second family report the father attended interview with a gift for E. However, the father would not allow that gift to be passed on to E through the intervenors. In my view the father’s refusal to allow E to receive the gift through the intervenors highlights his lack of insight as to the needs of the children, placing his own need to be perceived as the gift-giver above the benefits to E of having the knowledge that his father had passed on a gift to him.
At paragraph 130 of the second family report Ms H raises serious concerns as to the father’s parenting capacity. She there notes issues around the father’s housing, alleged substance misuse, family violence and parenting capacity. She also notes the failure of the father to comply with previous Court orders which raises concerns as to whether he will comply with orders in the future. She also notes the reports that the father has behaved in an aggressive and intimidating manner towards the mother and the intervenors and raises concern that such behaviour may continue in the future.
Further, at paragraph 131 of the second family report Ms H observed that given the sparsity of information provided by the father in the context of these proceedings coupled with his lack of compliance with previous Court-ordered assessments, such behaviour suggests that he is unwilling to engage with evidence-collecting processes. Given the procedural history of this matter, I agree with that assessment.
At paragraph 132 of the second family report Ms H states:-
…[The father’s] presentation of denial and resistance suggested that he has limited capacity to identify and prioritise the children’s needs…
I accept the unchallenged evidence of Ms H with respect to the father’s presentation at interview, conduct during these proceedings and her assessment of his parenting capacity. Having regard to those matters I am satisfied that the father has little insight as to the children’s needs and has exhibited a poor attitude to the responsibilities of parenthood.
At paragraph 137 of the second family report Ms H highlights the concerns for the children given the seeming inability of the mother and the father to attend to the children’s basic physical needs when in their care. In addition, Ms H expresses concern that neither the mother nor the father would support the children’s on-going attendance at the physical and mental health services which are currently in place. Again, having regard to the history of neglect which I have detailed above, I am satisfied that there is significant force in those observations.
I have serious reservations as to the mother’s capacity to care for the children’s physical and emotional needs. I have already detailed the allegations of neglect of the children whilst in the mother’s care. The reality is that there were significant gaps in the support of the children’s physical well-being as well as support for their education and health needs when in the mother’s care. Those issues have now been and are continuing to be addressed by the intervenors.
There are also significant on-going issues with respect to the mother’s use of illicit substances and the potential impact that her use of such substances has upon her ability to care for the children. That this is so is evident from the orders sought by the ICL for the mother to submit to drug screening. The mother accepts the need for such an order and joins with the other parties in seeking an order in those terms.
(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;
To the extent that these matters are relevant they are referred to earlier in this judgment.
(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;
This consideration is not relevant to the matter.
(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;
I have addressed the issues with respect to family violence earlier in this judgment.
The children and the mother are currently protected persons pursuant to a Family Violence Intervention Order.
Having regard to the unchallenged evidence of Ms N, Ms H and the mother to which I have referred earlier in this judgment, I am satisfied that the mother and the children have been subjected to family violence by the father.
(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;
There is no question as to the desirability of orders finalising proceedings between the parties. The children have been the subject of litigation since 2015. The children have been exposed to on-going conflict, including family violence. The evidence of Ms H is that the children have been traumatised by their experience of family violence; they are now engaged in counselling services in order to address those issues.
The evidence of Ms H indicates that the father has little insight as to the impact of his behaviour upon the children, the mother or the intervenors. At this time he is focussed on blaming the Court, the police and others within the system for the disruption to his relationship with the children rather than looking to his own behaviour as the cause of that disruption. Until such time as there is a shift in his focus, it is difficult to envisage a circumstance in which the children could spend time with him.
At paragraph 133 of the second family report Ms H notes that the mother presented as aware of the children’s need for stability in their care arrangements and for there to be a resolution of the parenting dispute. Ms H observed that:-
…[The mother’s] capacity to identify and prioritise the needs of the children (to a degree) to live primarily in an environment that provides them with consistency of care above her own need to remain the primary care-giver for the children may be considered a parenting strength.
The mother, to her credit, concedes that it is appropriate that final orders be made for the intervenors to have sole parental responsibility and for the children to live with them. She seeks orders that she have the opportunity to spend time with the children provided that she engages in a parenting course and submits to drug screening. The orders as sought by the mother and the intervenors will ensure that the children have security and stability in their care and in their relationships with the intervenors and the mother.
(m)any other fact or circumstance that the court thinks is relevant.
There are no other relevant facts or circumstances.
Conclusion
The intervenors, the mother and the ICL seek orders that the intervenors have sole parental responsibility for the children. The reality for the children is that the intervenors have undertaken that responsibility since they commenced caring for the children in late-2016. Since the children have commenced living with the intervenors they have arranged for the children to attend counselling services and other medical professionals to address their emotional and physical needs. The unchallenged evidence of Ms H casts significant doubt over the capacities of both the father and the mother to exercise parental responsibility in respect of the children. To her credit this is recognised by the mother, who joins in seeking orders for the intervenors to have sole parental responsibility.
As discussed earlier, the father’s involvement in the children’s lives since they commenced living with the intervenors has been limited. The children are currently protected by an intervention order made against the father. For his part, B does not wish to have any relationship with the father until the expiration of that order.
Having regard to those matters, I am satisfied that it would be impracticable and contrary to the children’s best interests to make any order that the mother or the father exercise parental responsibility in relation to the children. I am satisfied that it is in the children’s best interests that the intervenors have sole parental responsibility for the children to ensure that they are able to make all necessary decisions regarding the children’s long-term care, welfare and development as and when such decisions are required.
It was conceded by the mother during her oral submissions that she currently has no residence and that the children cannot live with her. The mother joins with the ICL and the intervenors in seeking orders that the children continue to live with the intervenors. An order in those terms will ensure that the children’s living arrangements are unchanged. The unchallenged evidence and recommendations of Ms H overwhelmingly supports an order in those terms. That evidence indicates that the intervenors are attending to and supporting the children in respect to all of their physical, emotional and psychological needs. The children are thriving in the care of the intervenors. Having regard to the evidence of Ms H I am satisfied that orders in those terms are appropriate and in the children’s best interests.
I am also asked to make an order that the father spend no time with the children. The only caveat to that proposal was raised by Ms Polson in her closing submissions. She raised with the Court the possibility of the children having the opportunity of receiving cards and gifts from their father on occasion. That proposal was rejected by the maternal grandfather, Mr Weekes, the mother and the ICL.
At paragraph 138 of the second family report Ms H makes a series of recommendations. In that report, Ms H recommends that the children C, D and E spend supervised time with the father on four occasions per year on an on-going basis for as long as the children wish to attend and further that the intervenors be required to provide the father with updates as to the children’s academic progress and physical wellbeing on four occasions per year. Ms H also recommends that the father be able to send the children letters and small gifts, but that the intervenors have the right to monitor the contents of communications between the father and the children.
In circumstances where the father has failed to file evidence in the proceedings and absented himself from the hearing, there would appear to be little utility in attempting to craft orders that he spend time with the children. It is evident from Ms H’s report that notwithstanding the trauma the children have experienced due to the family violence perpetrated by the father against the mother, some of the children seek the opportunity of maintaining a relationship with him. For example, B indicated to Ms H that whilst he did not wish to spend time with the father presently, he did not seek to close the door to such communication in the future. At paragraph 106 of her report Ms H notes that B indicated that he did not wish to spend time with his father whilst the current intervention order remained in place. Similarly Ms H noted at paragraph 72 of her report that E said he would like to spend time with his father in the future but would prefer such time to be supervised. C also indicated that she would like to spend some time with her father.
In the circumstances and having regard to the recommendations of Ms H, I am satisfied that it is appropriate and in the children’s best interests that the father have some opportunity to communicate with the children. At paragraph 135 of the second family report, Ms H highlights the potential risks to the intervenors if they are required to provide information to the father, given his history of verbal abuse and violence towards them and the children. Nonetheless, Ms H acknowledges the benefits to the children of providing some opportunity for them to receive communication from the father as this may be the only avenue the children available to them to have contact with the father in the future.
I am conscious of the unchallenged evidence as to the father’s violent behaviour towards the mother and in the presence of the children. Having regard to that history and in circumstances where the father has not participated in the final hearing and has not sought to contradict that evidence, I do not propose to make any orders for him to spend time with the children.
However, I am satisfied that it is appropriate and in their best interests that the father have the opportunity to provide letters and gifts to the children on their birthdays and at Christmas on the basis that the contents of those communications be monitored by the intervenors. That limitation will ensure that the children are safeguarded from any inappropriate communication from the father. Ms H noted at paragraph 135 of the second family report that the intervenors acknowledged the children’s need to have the mother and the father in their lives and to provide an avenue for the children to have a relationship with their parents in the future. At the time of that interview the intervenors proposed that the father have limited telephone communication and time with the children. In light of that evidence and the recommendations of Ms H, I am satisfied that it is in the children’s best interests that the door be left ajar and the father have an opportunity to engage in positive communication with the children on the occasion of their birthdays and at Christmas.
At paragraphs 8 and 9 of the ICL’s proposed orders I am asked to make orders pursuant to s 68B of the Act restraining the father from communicating with or attending at or within 200 meters of the residence, place of work or tuition of the mother, the intervenors and the children.
The orders sought also include a warrant provision pursuant to s 122AA of the Act. Those orders are sought having regard to the long history of family violence said to have been perpetrated by the father against the mother and the children. The intervenors also alleged that they have been exposed to verbal abuse by the father.
The evidence of the mother and the intervenors is unchallenged insofar as the father’s conduct is concerned. Although I was not asked to make a finding as to unacceptable risk, having regard to the uncontested evidence of the mother and the intervenors and the unchallenged evidence of Ms H as to the children’s statements with respect to the father’s violent conduct, I am satisfied that he does pose such risk. The mother and the children have expressed their fear of the father to both Ms N and Ms H. The evidence of those Family Consultants is that all of the children have been exposed to family violence at the hands of their father. The children are currently protected by State intervention orders which will soon expire. In the circumstances, having regard to the history of the father’s violent and abusive conduct towards the mother and in the presence of the children, I am satisfied that I should make orders as sought pursuant to s 68B of the Act to ensure the safety and well-being of the children and the mother. I am also satisfied that it is necessary and in the children’s best interests that such order be made to protect the intervenors, who have been subjected to the father’s verbal abuse and who are the children’s primary caregivers.
The mother and the intervenors also seek orders that they be restrained from bringing the children into contact with the father. Given my findings with respect to the father’s conduct and my orders that he spend no time with the children, I am satisfied that it is in the children’s best interests that I make an order in those terms.
Orders are also sought for the mother to spend time with the children provided that she completes an accredited course with respect to parenting effectiveness and provides a certificate of completion for the same to the intervenors and that she produces two consecutive supervised urine drug screens which are clear of illicit substances. It is proposed that initially, the mother’s time for the first 12 months following these orders not include overnight time and thereafter in the second 12 months the time not include overnight time at any location in excess of 100km from the intervenors’ residence. I am satisfied that the orders as proposed include the necessary safeguards to ensure that the children are not exposed to risk of harm in the mother’s care. They appropriately address the risks associated with the mother’s history of use of illicit substances as well as concerns as to her capacity to appropriately care and provide for the children. Accordingly, I will make orders as sought by the intervenors, the mother and the ICL with respect to the mother’s time with the children.
Orders are also sought that the mother be restrained by injunction from consuming or being under the influence of alcohol or any illicit substance for the 24-hour period immediately prior to the commencement of her time with the children. In circumstances where the mother has admitted use of illicit drugs I am satisfied that those safeguards are appropriate and in the children’s best interests.
It is also proposed that there be orders that the parties keep each other informed as to their current residential addresses and telephone numbers and that they notify each other in the event that the children suffer any illness or injury whilst in their care. I am satisfied that orders in those terms are sensible and appropriate; they will ensure the intervenors and the mother are able to communicate with each other regarding matters relating to the children’s care and welfare. An order in those terms is in the children’s best interests.
I am also satisfied that it is in the children’s best interests that the mother be restrained from denigrating the intervenors or discussing the proceedings in the presence or hearing of the children or any of them. That is an order sought by the ICL, the intervenors and the mother. The evidence of Ms H indicates that all of the children have been exposed to and suffered as a result of the conflict between their parents and the intervenors. The orders proposed will ensure that the children are protected from exposure to inappropriate and damaging communication by the mother.
The ICL seeks orders that she and the intervenors be at liberty to provide the children’s school principals, medical practitioners and allied health professionals and the Department of Health and Human Services with a copy of the Court orders. Again, I am satisfied that it is in the children’s best interests that they be permitted to do so to ensure that all relevant professionals engaged in the care of the children have access to information regarding their care arrangements.
The ICL also seeks orders that she be permitted to explain the outcome of these proceedings to the children. Given the matter’s long history, I am satisfied that an order in those terms is appropriate.
Accordingly I make orders as follows:-
(1)That all previous orders in relation to the children, B born … 2002, C born … 2004, D born … 2005 and E born … 2008 (“the children”) be discharged.
(2)That the Intervenors have sole parental responsibility for making decisions regarding the long term care, welfare and development of the children.
(3)That the children live with the Intervenors.
(4)That the father spend no time with the children.
(5)That the father be permitted to send cards and gifts to the children on each of their birthdays and at Christmas provided that:-
(a) The card or gift is sent to the Intervenors;
(b)The Intervenors shall inspect such communication prior to passing on to the child or children; and
(c)In the event the Intervenors deem that communication to be inappropriate they be excused from passing such communication to the children.
(6)That save as provided in order 5 hereof the father be and is hereby restrained by injunction pursuant to s 68B of the Family Law Act (“the Act”) from communicating with or attending at or within 200 metres of the residence, place of work (whether paid or unpaid) or tuition of:-
(a) the children;
(b) the Mother; and
(c) the Intervenors
and for the avoidance of doubt this injunction is for the personal protection of the mother, the children and the Intervenors referred to in this Order and pursuant to s 68C of the Act a power of arrest, without a warrant, attaches to this injunction.
(7)That save as provided in order 5 herein the Intervenors be and are hereby restrained from bringing the children or either of them into contact with the Father.
(8)That the mother be and is hereby restrained from bringing the children or either of them into contact with the Father.
(9)That subject to the Mother:-
(a)Enrolling in and completing an accredited course in parenting effectiveness and providing a certificate of completion for same to the Intervenors; and
(b)Producing two (2) consecutive supervised urine drug screens which are clear of illicit substances, such supervised drug screens to be completed within 48 hours of being requested to do so, in writing (including by SMS text message or e-mail), by either both or one of the Intervenors;
the children spend time with the mother as agreed in writing between the Intervenors and the mother provided that upon time commencing, such time shall:-
(i)in the first 12 months, not include overnight time; and
(ii)in the second 12 months, not include overnight time at any location in excess of 100 kilometres from the Intervenors’ residence.
(10)That for the period of 24 hours immediately prior to the commencement of any time spent with the child, and during all such time spent, the mother be and is hereby restrained by injunction from ingesting, consuming or using or otherwise being under the influence of, alcohol and or any legal or illegal drug or substance, save and except for:-
(a)any legal medication prescribed for the mother by a registered medical practitioner, and taken or used by her strictly in accordance with such prescription; and
(b)any over-the-counter medication or pharmaceutical substance ordinarily sold in major supermarkets and taken or used by the mother strictly in accordance with the directions appearing on such medication or pharmaceutical substance.
(11)That the Intervenors:
(a)keep the mother advised at all times of the current residential address and telephone number of the children and advise the mother of any change thereto within seven (7) days of such change;
(b)advise the mother immediately in the event that the children, or any of them, suffers any serious illness or injury; and
(c) authorize:-
(i)any medical practitioner upon which the children, or any of them, may attend from time to time;
(ii)any school which the children, or any of them, may attend from time to time;
to communicate with the mother in respect to the children’s medical condition and/or requirements.
(12)That whilst the mother is spending time with the children pursuant to these orders, or in anticipation of spending time with the children, the mother shall:
(a)keep the Intervenors advised at all times of her current residential address and telephone number and advise the Intervenors of any change thereto within seven (7) days of such change;
(b)advise the Intervenors immediately in the event that the children or any of them suffer/s serious illness or injury; and
(c)authorize any medical practitioner upon which the children, or any of them, may attend from time to time, to communicate with the Intervenors in respect to the children’s medical condition and/or requirements.
(13)That the Mother be and is hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the Intervenors or any member of their household in the presence or hearing of the children, or any of them, or from permitting any other person so to do;
(b)discussing the proceedings with or in the presence or hearing of the children, or any of them, or permitting any other person so to do.
(14)That the Independent Children’s Lawyer and the Intervenors shall be at liberty to provide a copy of these Orders to any one or more of the following:
(a)the Principal or delegate of the Principal of the school attended from time to time by the child;
(b)any Medical Practitioner and/or allied health professional attending upon any one or more of the children and/or the Mother; and
(c)the relevant Regional Director of the Department of Human Services (Victoria) or Child and Family Services (New South Wales).
(15)That within fourteen (14) days of the date of these Orders, the Intervenors shall arrange an appointment for the children to meet with the Independent Children’s Lawyer so that the Independent Children’s Lawyer can explain the outcome of these proceedings to the children.
(16)That upon compliance with paragraph 15 hereof, the Order appointing the Independent Children's Lawyer be discharged.
(17)That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
(18)That all extant applications be otherwise dismissed.
I certify that the preceding one hundred and seventy-three (173) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 29 March 2018.
Associate:
Date: 29 March 2018
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Injunction
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Jurisdiction
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Remedies
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Procedural Fairness
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Costs
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Standing
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