Marchbank and Robson (Child support)
[2023] AATA 4296
•16 November 2023
Marchbank and Robson (Child support) [2023] AATA 4296 (16 November 2023)
DIVISION:Social Services & Child Support Division
REVIEW NUMBER: 2023/PC026308
APPLICANT: Mr Marchbank
OTHER PARTIES: Child Support Registrar
Ms Robson
TRIBUNAL:Member Y Webb
DECISION DATE: 16 November 2023
DECISION:
The decision under review is affirmed.
CATCHWORDS
CHILD SUPPORT – departure determination – costs of education - manner expected by both parents - cost of maintaining the children are significantly affected – a ground for departure established – decision to depart – decision under review affirmed
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.
REASONS FOR DECISION
This review relates to the issue of child support regarding the child of Mr Marchbank and Ms Robson. The child is eight years old and the Services Australia – Child Support (Child Support) records reflect that from 3 March 2023 Ms Robson has 70% care of the child and Mr Marchbank 30% care.
The child support case commenced on 21 February 2022 and has been collectable by Child Support since that date.
On 2 November 2022, Ms Robson applied to Child Support for a change to the administrative formula assessment. She cited Reason 3.
At the time of the application to change the assessment and in the period 8 October 2022 to 5 January 2023, Mr Marchbank was being assessed to pay an annual rate of child support of $9,185 based on his 2022-23 estimated income of $83,954 and Ms Robson’s 2022-23 estimated income of $41,192. Both parents’ estimates of income were reconciled. Mr Marchbank’s reconciled estimate was $92,940 and Ms Robson’s was $54,136 resulting in annual child support payable by Mr Marchbank of $10,207 in the period 8 October 2022 to 31 December 2022 (at that time the care of the child was 100% to Ms Robson). From 3 March 2023 when the care was changed to 70% to Ms Robson and 30% to Mr Marchbank, the annual rate of child support payable by Mr Marchbank was $8,380.
On 17 March 2023 a delegate of the Registrar decided that Reason 3 had been established. The decision maker decided that for the period 1 January 2023 to 31 December 2023 the annual rate of child support payable by Mr Marchbank would be increased by $2,018 in relation to his contribution to the school fees for the child.
On 20 April 2023 Mr Marchbank objected to that decision.
On 25 May 2023 an objections officer allowed his objection. The objections officer decided “that for the period 1 January 2023 to 31 December 2023 the annual rate of child support payable by Mr Marchbank would be increased by $1,630 per annum. For each calendar year (01/01 to 31/12) commencing 01/01/2024 and ending 31/12/2027, the annual rate payable by Mr Marchbank will increase by the rate of 50% payable (less any discount) towards the tuition fees and levy (only) for (the child’s) attendance at [School 1]. Ms Robson will be responsible in providing the school invoice statements (a school fee schedule will not be accepted) by the end of February each year”.
On 27 June 2023 Mr Marchbank applied for review by the Administrative Appeals Tribunal (“the Tribunal”).
The hearing took place on 16 November 2023. Mr Marchbank and Ms Robson both attended by way of a telephone conference and both gave evidence on affirmation.
ISSUES
The central issues for the Tribunal to determine in this case are:
· Whether one or more of the grounds for departure referred to in subsection 117(2) of the Child Support (Assessment) Act 1989 (the Assessment Act) exists; and if so,
· Whether it would be:
(a) just and equitable as regards the child, the liable parent, and the carer entitled to child support; and
(b) otherwise proper;
to make a particular determination to depart from the administrative assessment of child support.
DOCUMENTARY EVIDENCE
The Tribunal had before it a number of documents, organised into exhibits as set out in the attached Schedule. The Tribunal had regard to all of this evidence and refers specifically to particular items in this statement of reasons.
CONSIDERATION
The child support law
The legislation relevant to this review is contained in the Assessment Act and the Child Support (Registration and Collection) Act 1988.
The rate of child support payable by the liable parent is usually based on an administrative formula assessment under Part 5 of the Assessment Act. This requires the application of a statutory formula which takes into account factors such as the number of children, the level of care provided and the income of each parent.
The liable parent or carer may apply to the Child Support Registrar for a determination to depart from the child support administrative assessment under Part 6A of the Assessment Act (section 98B). Section 98C provides that the Registrar may make a determination to depart from the formula assessment and establishes a three-step process as described in paragraph 10 above.
The grounds for departure from an administrative assessment of child support are those set out in subsection 117(2) of the Assessment Act. Each ground for a departure from the administrative formula is prefaced by the words “in the special circumstances of the case”. Therefore, when considering whether any of the grounds exist in this case, the Tribunal must be satisfied that there are “special circumstances” in the case. If satisfied that there are “special circumstances” and that a ground or grounds exist and that it would be just and equitable and otherwise proper to make a particular determination, the Tribunal may make one of the determinations prescribed in section 98S of the Assessment Act. Section 98S sets out a range of determinations that may be made under the departure provisions.
The phrase “special circumstances of the case” is not defined in the Assessment Act. In the case of Gyselman and Gyselman (Gyselman),[1] the Full Court of the Family Court of Australia held that:
Section 117(2) sets out the grounds for departure from administrative assessment. Each of those grounds is prefaced by the words “in the special circumstances of the case”.
Whilst it is not possible to define with precision the meaning of that term, as a generality it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary. That is, the intention of the legislature is that the court will not interfere with the administrative formula result in the ordinary run of cases.
[1] (1992) 15 Fam LR 219
Subsection 98C(3) of the Assessment Act provides that subsections 117(4) to (9) of the Assessment Act apply to the Registrar and therefore the Tribunal must consider those provisions when deciding whether, if a ground is established, it would be just and equitable or otherwise proper to make the departure decision.
Does a ground or grounds exist to depart from the administrative formula assessment?
In considering whether a ground or grounds exist which justify departing from the administrative formula assessment, the Tribunal considered the evidence and submissions provided by the parents in addition to the extensive documentation provided by the Child Support Agency.
Reason 3
In relation to Ms Robson’s claim that the costs of maintaining the child are significantly affected because of the mutual expectation of the parents that the child be educated at a private school, specifically [School 1] (“the School”), the legislative test is detailed in subparagraph 117(2)(b)(ii) of the Assessment Act. The test is whether:
in the special circumstances of the case, the costs of maintaining the child are significantly affected because the child is being cared for, educated or trained in the manner that was expected by his or her parents.
This ground is commonly referred to as Reason 3.
Ms Robson is seeking that Mr Marchbank contribute to 50% of the school fee costs. She contended that Mr Marchbank jointly signed the application for the child’s admission in 2018 and that the child started attending the pre-kindergarten level at the School in 2019. The child has continuously attended the School since that time and is in year 2 in 2023. Ms Robson stated that she believes the schooling costs should be split 50/50 and that it is unfair for one parent to bear all of the schooling costs. Ms Robson stated that both parents agreed that the child would attend the School. Ms Robson referred to the application for admission which clearly was signed by both parents.[2]
[2] Hearing papers pages 235 to 236
Ms Robson stated that it was true that she was the sole signatory on the Student Information Form,[3] which included her signature and name as the “person responsible for the payment of fees”. Ms Robson stated that the School informed her that only one signature was required on this form.
[3] Hearing papers pages 237 to 245
Ms Robson stated that for the first year of their child’s education in 2019 she paid the fees. However, she said that in the next year both she and Mr Marchbank each paid 50% of the school fees. She stated that it is unfair that after separation in 2020 she has paid all of the school fee costs.
Ms Robson stated that after they separated in June 2020 Mr Marchbank gave her money for the child’s needs. He gave her $800 per month by way of a private agreement. She stated that on occasions Mr Marchbank gave her extra funds and she always used the money for the child’s needs, including to pay school fee instalments on occasions.
Mr Marchbank stated that he has never agreed to pay for the child’s education at the School. He stated that it is true that his parents offered to pay for the child’s education at [School 2]. However, their offer related only to [School 1] and not to any other school.
Mr Marchbank stated that he and Ms Robson jointly consented for the child to attend the School but that this was on condition that Ms Robson paid the fees. Mr Marchbank stated that he recently contacted the School and it confirmed that it could not pursue him for fees because he was not named as a person responsible for the payment of school fees.
Mr Marchbank strongly denied that he had ever given Ms Robson additional funds beyond the $800 per month as per their private agreement (until their case became Child Support collect in 2022). He stated that he didn’t enquire how specifically Ms Robson used the funds he provided but he never gave Ms Robson money specifically for school fees. It was up to Ms Robson how she spent the money for the child’s upkeep.
Mr Marchbank denied that after the child commenced her schooling in 2019 but prior to separation in June 2020 that he paid 50% of the school fees. He stated that he had never paid school fees.
In his statement to Child Support on 24 January 2023 Mr Marchbank stated that he was not listed as the person responsible for the school fees because the School was not his preferred choice of school for the child. He also referred to the cost of contributing to school fees and stated that if Ms Robson is not able to pay the fees then neither should he be liable for fees.
Considering whether the child is being educated or trained “in a manner expected” is not defined in the legislation. In Mee and Ferguson [1986] FamCA 3, the Full Court of the Family Court in considering a similar provision in the Family Law Act 1975 said:
It refers to the manner in which the child “is being”, and which the parties to the marriage “expected” the child to be educated. That provision appears to have direct relevance to the issue of private school education, particularly its reference to the manner in which the parties “expected” the child to be educated. The word “expected” in the past tense presumably relates to some expectation of the parties at a point in time earlier than the hearing.
The Tribunal had regard to additional case law in relation to Reason 3. In Mabry & Mabry & Anor [2010] FMCAfam 388, the Federal Magistrates Court of Australia stated:
The simplest method of proof of the parent’s expectations is to look to the past conduct of the parents, often evidenced by the child attending a particular school before separation.
Similarly in Newman & Caldwell [2009] FMCAfam 496, the Federal Magistrates Court of Australia stated:
The provisions of the Child Support (Assessment) Act 1989 do not provide for the Tribunal to determine what is a reasonable standard of education for the children…but require the Tribunal to first determine what the parties intended and secondly, determine the extent to which each of them can contribute to the relevant expenses.
In this case both parents agreed that both parents intended that the child would attend the School. It may not have been Mr Marchbank’s first choice of school but it is the one that he consented to the child attending. It is agreed that both parents signed the application for admission form in 2018 and that the child commenced at the School in 2019. The parents separated in June 2020. The child still attends the School.
The Tribunal finds – and it is not in dispute – that the child is being educated in the manner which was expected by the parents.
Having found that it was the mutual intention of the parents that the child attend the School, the Tribunal must consider whether, in the special circumstances of the case, the costs of maintaining the child are significantly affected by that private education. The fee schedule for 2023 showed that the compulsory charges/levies and tuition fees totalled $3,260 for the 2023 year (disregarding cents)[4]. The Tribunal disregarded items such as the camp fee, swimming lessons and the year book as these are not costs which it considered special or out of the ordinary. The Tribunal finds that the school fees costs of attending the private school are significantly higher than the costs of the child attending a government school and therefore that they are expenses that are out of the ordinary. The Tribunal is satisfied that the compulsory costs payable for the private education significantly increase the costs of maintaining the child. The Tribunal is satisfied that special circumstances exist.
[4] B18-B20
The Tribunal acknowledges that there are other costs in addition to the school fees such as school uniforms and class excursions but these items and charges are commonly required by students whether a child attends a private school or a government school and are expected to be factored into the child support administrative formula. While the Tribunal acknowledges that these additional costs are significant, it does not consider that they exceed to any marked degree the costs incurred by many families regardless of the type of education their children receive.
The Tribunal finds that Reason 3 has been established. In relation to the extent to which each of the parents should contribute to the child’s private schooling, the Federal Magistrates Court of Australia has stated the following:
Whether the fees can be met (and the proportions in which the parents must contribute) must be determined having regard to the parents’ actual financial positions, is a matter to consider under ‘just and equitable’.[5]
[5] Mabry & Mabry & Anor [2010] FMCAfam 388
Would it be just and equitable to depart from the administrative assessment?
Section 3 of the Assessment Act states that parents have the primary duty to maintain their children and that this duty takes priority over all commitments of the parents other than commitments necessary to enable the parent to support themselves or any other child or another person that the parent has a legal duty to maintain. The Assessment Act contemplates not only that both parents contribute to the support of their children but that the parents’ capacity to contribute must be taken into account.
Having found a reason for departure, the Tribunal must consider whether it is just and equitable to depart from the administrative formula assessment. The Tribunal must have regard to a range of matters set out in subsection 117(4) of the Assessment Act. This requires an assessment of the duty of the parents towards the child; the needs of the child; any income, earning capacity and financial resources of the child; the income, earning capacity and financial resources of the parents, self-support commitments and an evaluation of hardship on the parties (and/or the child) if the Tribunal increased or decreased the amount of child support payable.
In considering these issues, the Full Family Court, in the case of Gyselman, stated that:
However, some of the matters listed in sub-section (4) may overlap with matters already considered under sub-section [117] (2) and some of the paragraphs in sub-section (4) may be more significant in one case than they would be in another or of little relevance in a particular case. It is an essential part of the s.117 exercise to carry out the obligation under sub-section (4). However, that does not mean that it is necessary in each case to slavishly go through each of the paragraphs. The extent to which it is necessary to do so will depend upon the facts and conduct of the individual case and the analysis already performed under sub-section (2).
Of particular relevance in this matter are the following aspects of subsection 117(4) of the Assessment Act.
The proper needs of the child
In determining the proper needs of the child, subsection 117(6) of the Act requires the Tribunal to have regard to the manner in which the parents expected the child to be cared for, educated and trained as well as a consideration of any special needs of the child.
The Tribunal has found that Reason 3 has been established and that the child is being educated in the manner that was expected by the parents and that the costs of the private education significantly affect the costs of maintaining the child.
The Tribunal has found that the compulsory school fees payable annually (in 2023) total $3,260. Ms Robson is seeking that Mr Marchbank pay 50% of the school fees and the Tribunal considers that request is reasonable subject to considering the income, property and financial resources of the parents below.
Ms Robson and Mr Marchbank both agreed that the child did not have any other proper needs which the Tribunal needed to take into consideration.
Mr Marchbank’s income, property, financial resources, expenses and earning capacity
Mr Marchbank chose not to provide a Statement of Financial Circumstances. However, he did provide three consecutive, recent payslips which showed that his monthly gross income was $7,187 (disregarding cents) or $86,244 per annum[6].
[6] A3-A5
Mr Marchbank explained that he has worked in [a Work sector] for 12 years but that in recent years he has worked a job share roster (50% of the load) of two weeks on/four weeks off. He started that roster on 26 October 2021 and is still working on the two weeks on/four weeks off roster because he is trying to ensure that if he succeeds in being granted additional care of the child he has the time to care for the child. He provided his Notice of Assessment which showed that in the 2022–23 financial year his taxable income was $92,940 and the Tribunal so finds[7].
[7] A6
Mr Marchbank advised that he is buying a property jointly with his brother and each of them pays mortgage repayments of $1,440 per month. They purchased the property in 2010. He owns one motor vehicle.
He has modest savings and the Tribunal is satisfied that his expenses are unremarkable. He advised, and the Tribunal accepts, that apart from his mortgage he has no debts.
In relation to his earning capacity the Tribunal is satisfied that Mr Marchbank has been in stable employment with the same employer for more than 12 years. He has changed his work pattern in that he is working in a job share arrangement rather than full-time. While that may in some circumstances indicate that he is not exercising his full earning capacity the Tribunal accepts his statement that he has worked the job share arrangement since October 2021, which was before the child support assessment commenced. The Tribunal was not persuaded that a purpose of Mr Marchbank changing his work arrangements was to affect the child support assessment. Rather, the Tribunal accepts that he had genuine reasons for changing his work pattern relating to the care of the child.
Ms Robson’s income, property, financial resources and earning capacity
Ms Robson provided a Statement of Financial Circumstances. She declared that she is working on a part-time basis and that she has been in her current employment for approximately two years. She provided her Notice of Assessment and this showed that her taxable income in the 2022–23 financial year was $50,996[8]. She provided three recent consecutive payslips and these showed that her income fluctuates from week to week depending on whether she works overtime or weekends. She is contracted to work between 32 and 35 hours per week.
[8] B23
Ms Robson is buying her property. Her mortgage payments are $574 per week. She owns one motor vehicle which she estimated has a value of approximately $33,000.
She has modest savings and a small credit card debt.
In relation to her expenses, Ms Robson calculated that her household expenses totalled approximately $68,200 per year[9], including $78 per week which she pays for the child’s schooling expenses.
[9] B9
In relation to earning capacity Ms Robson is working part time and has been for some time. She confirmed that she left her previous employment due to the heavy lifting involved. The Tribunal accepts her evidence about her work arrangements and finds that there is no evidence to suggest that the earning capacity provisions are an issue in Ms Robson’s case.
The income, property and financial resources of the child
Ms Robson and Mr Marchbank both advised – and the Tribunal finds – that the child has no significant income, property and financial resources of her own
Necessary commitments to support themselves or others
The Tribunal notes that the Family Court of Australia has been prescriptive about the types of expenses that can be considered “necessary” expenses and that there are only a few expenses that can be considered to take priority over a parent’s primary duty to support their children. This includes expenses such as a reasonable amount for payment of rent or mortgage, food, utilities, and some loans. In Mee and Ferguson[10] the Full Court of the Family Court stated at paragraph 128:
Some of the items obviously have to be taken into account before maintenance is arrived at; for example, the cost of reasonable transport, food and clothing, and other like expenses are necessary to the continued reasonable existence of a parent, and, barring legislative direction to the contrary, it would not accord with the understanding in this jurisdiction to suggest that those items should be put out of consideration before child maintenance is determined. On the other hand there is no doubt that one of the primary responsibilities of a parent is the continued support of children to the extent to which the parent continues to be able to do so and that may in appropriate circumstance mean making financial sacrifices or cutting one's cloth to meet that commitment during the years when it applies.
[10] [1986] FamCA3
Neither Mr Marchbank nor Ms Robson raised any issues in relation to self-support and the Tribunal finds accordingly.
Any hardship to either parent or the child by the making of, or refusal to make, an order
Mr Marchbank stated that if he was obliged to pay additional child support above the formula amount he believes that would cause him financial hardship. He emphasised that his decision to reduce his hours of work so that he could increase his care of the child was made in 2021 long before Ms Robson made her claim for him to contribute to the school fees. Financially, it was a difficult decision but he thought it was manageable and that it would be in the child’s best interests. He didn’t anticipate, however, that he may have to pay additional child support above and beyond the formula assessment. In addition, he stated that he has to travel 210 km per week to (with the resulting fuel costs) to facilitate his care of the child and to take her to her dance class on Saturdays. He does not believe that he is in a position to contribute to any further financial claim from Ms Robson.
Ms Robson stated that she would not claim to be in financial hardship but nevertheless the cost of the child’s private schooling increases every year. Next year the fees will be $4,499 and in addition she needs two sets of school uniforms. Currently, she is paying for all of the school costs. She anticipates that as time goes on she will be in financial hardship. She acknowledges that there is the option to take the child out of her current school and send her to a government school but she thinks this would be unfair to the child given that she has been attending her current school for five years and has made friends and is happy there. She wants the child to be able to continue at her current school.
Proposed determination
The Tribunal has carefully considered the evidence provided and the statements and submissions of both parents.
The Tribunal acknowledges that Mr Marchbank firmly holds the view that although he consented to the child attending the School and signed the application for admission form, he is not liable for any of the school fees because only Ms Robson signed the payment of school fees section of the form as the person responsible for the payment of fees. While the Tribunal acknowledges that Mr Marchbank genuinely holds the view that he should therefore have no responsibility for payment of fees, subparagraph 117(2)(b)(ii) of the Assessment Act makes no reference to payment of fees. The threshold requirements as they apply to the child are in the special circumstances of the case:
·It must be established that the child is being educated in a way that both parents intended; and
·The costs incurred to educate the child significantly affect the costs of maintaining her overall
The Tribunal has found that all of these elements have been satisfied. Hence, the Tribunal has concluded that Reason 3 has been established.
The Tribunal has carefully considered the extent to which Mr Marchbank should contribute to the school fees and charges. The Tribunal accepts that Mr Marchbank’s income is somewhat below what it was in the past due to his job share working arrangements .His income is nevertheless significantly higher than Ms Robson’s income. As both parents agreed to educate the child at the School, it is just and equitable that both parents contribute to the costs of attending the school unless there are compelling reasons why that should not be the case. If Mr Marchbank was to share half of the costs of the school fees and compulsory levies/charges (which total $3,260) this would mean that Mr Marchbank would be liable for an additional $1,630 per year or $31 per week (approximately) over and above his child support payments. The Tribunal considers that this is a modest increase in his overall child support payments and one that is affordable for Mr Marchbank. Given his agreement to the child’s private education at the School and his higher income it is fair and just that he pays half of the tuition and compulsory fees and charges as the objections officer decided.
The Tribunal agrees that it is reasonable to commence the change to the assessment from 1 January 2023 as the objections officer decided. This is the first full calendar year following Ms Robson’s application in November 2022. The Tribunal proposes to make a determination until the end of the 2027 calendar year as the child will complete her primary education at the end of 2027 and putting the change to the assessment in place for that period will alleviate the need for Ms Robson to apply again during the child’s primary education. It will also provide the parents with some financial certainty for the next few years.
Hence the Tribunal proposes, in agreeing with the objections officer, that it would be just and equitable to increase the annual rate of child support payable by Mr Marchbank by $1,630 per annum for the period 1 January 2023 to 31 December 2023. For each calendar year (01/01 to 31/12) commencing 01/01/2024 and ending 31/12/2027, the annual rate payable by Mr Marchbank will increase by the rate of 50% payable (less any discount) towards the tuition fees and levy (only) for the child’s attendance at [School 1]. Ms Robson will be responsible for providing the school invoice statements (a school fee schedule will not be accepted) by the end of February each year.
The Tribunal considers the determination made by the objections officer is fair, just and equitable and that it balances the needs and financial capacities of both parents. Therefore, the Tribunal agrees with it.
Is it otherwise proper to depart from the administrative assessment?
The final step for the Tribunal to undertake is to determine whether it is “otherwise proper” to make the particular determination to depart from the administrative assessment. Subsection 117(5) of the Assessment Act requires the Tribunal to take into consideration the following matters:
(a) the nature of the duty of a parent to maintain a child (as stated in section 3) and, in particular, the fact that it is the parents of a child themselves who have the primary duty to maintain the child; and
(b) the effect that the making of the order would have on:
(i) any entitlement of the child, or the carer entitled to child support, to an income tested pension, allowance or benefit; or
(ii) the rate of any income tested pension, allowance or benefit payable to the child or the carer entitled to child support.
The Tribunal must consider whether the proposed departure is “proper” within the context of the public interest and welfare expenditure by the community (see Gyselman). It is a prime objective of the child support legislation that parents should be obliged to support their own children to the extent of their real capacity, and that that obligation should not be unnecessarily left to the public welfare system when the parents themselves have the capacity to maintain their children.
The Tribunal is satisfied that Ms Robson needs financial assistance to support the child’s education and that Mr Marchbank has the capacity to contribute to those costs to the extent that the Tribunal has determined.
Paragraph 117(5)(b) of the Assessment Act directs the Tribunal to have regard to the effect that the making of the order would have upon the rate of entitlement to any income-tested pension, allowance or benefit.
Ms Robson advised that she does not receive family tax benefit for the child. This means that there will be no change in the extent to which the community supports the child. In the circumstances of this case, that is a proper outcome.
The Tribunal is satisfied that the proposed determination is ‘otherwise proper’ and that the determination should be made.
DECISION
The decision under review is affirmed.
List of Exhibits
Services Australia – Child Support marked as C exhibits:
· Child Support’s large bundle of 332 pages marked as section 37(1) documents
· Child Support’s section 38AA documents marked as exhibits C1–C147
Mr Marchbank has provided the following documents marked as A exhibits:
· A1–A2 Cover document
· A3–A5 Payslips
· A6 Notice of Assessment year ended 30 June 2023
Ms Robson has provided the following documents marked as B exhibits:
· B1 Cover document
· B2–B11 Statement of Financial Circumstances
· B12–B14 Payslips
· B15–B16 Income Statements 2022–23 financial year
· B17–B21 [School 1] fee information documents
· B22 Cover email
· B23 Notice of Assessment year ended 30 June 2023
Key Legal Topics
Areas of Law
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Family Law
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Administrative Law
Legal Concepts
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Jurisdiction
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Statutory Construction
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Costs
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Remedies
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