NKDL and Child Support Registrar (Child support second review)
[2024] AATA 3148
•4 September 2024
NKDL and Child Support Registrar (Child support second review) [2024] AATA 3148 (4 September 2024)
Division:GENERAL DIVISION
File Number(s): 2022/6987
Re:NKDL
APPLICANT
AndChild Support Registrar
RESPONDENT
AndPWSR
OTHER PARTY
DECISION
Tribunal:Member L M Gallagher
Date:4 September 2024
Place:Perth
The Tribunal affirms the decision of the AAT1 dated 16 August 2022 that:
(i)The Other Party provides 100% care of the Child from 1 November 2020, with effect from 24 January 2022; and
(ii)The Applicant provides 0% care of the Child from 1 November 2020, with effect from that date.
...............[Sgd].........................................................
Member L M Gallagher
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed 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.
CATCHWORDS
CHILD SUPPORT – percentage of care – whether there was a change in care – actual care – date of effect – evidence – decision under review affirmed
LEGISLATION
Child Support (Assessment) Act 1989 (Cth) ss 49, 49(1)(a), 49(1)(b), 50, 50(1)(a), 50(1)(b), 50(3), 51, 54A(1), 54A(3), 54F, 54F(1)(c), 54F(3)(b)(i), 54F(3)(b)(ii), 54G, 54G(2)(b), 54H, 54H(1)(c), 54H(3)(b)(i), 54H(3)(b)(ii) and 55C
Child Support (Registration and Collection) Act 1988 (Cth) ss 6(2AC)16(2AB), 87AA(1)
Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018 (Cth)
CASES
Minister for Home Affairs v G and Another [2019] FCAFC 79
Polec & Staker & Anor [2011] FMCAfam 959
P v Child Support Registrar [2013] FCA 1312
P v Child Support Registrar [2014] FCAFC 98Parent 1 and Child Support Registrar and Parent 2 [2013] AATA 562
SECONDARY MATERIALS
Guides to Social Policy Law: Child Support Guide
REASONS FOR DECISION
Member L M Gallagher
4 September 2024
THE APPLICATION
The Applicant seeks review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) dated 16 August 2022 (the Reviewable Decision).[1] The Reviewable Decision:[2]
(a)Set aside the decision under review;[3] and in substitution, decided that:
(i)The Other Party provides 100% care of the Child from 1 November 2020, with effect from 24 January 2022; and
(ii)The Applicant provides 0% care of the Child from 1 November 2020, with effect from 1 November 2020.
[1] R1, T2.
[2] R1, T2.
[3] Being the Respondent’s objection decision dated 22 April 2022. See R1, T24 and [10] below.
ISSUE
The issue for determination by this Tribunal, being the General Division of the Administrative Appeals Tribunal (the Tribunal), is the Applicant’s and the Other Party’s respective percentages of care of the Child from the relevant commencement date.[4]
[4] The relevant commencement date, being the date on which the change of care occurred (if indeed the Tribunal finds a change in care did occur), are findings of fact addressed by the Tribunal below. As the care period is now in the past, these percentages must correspond to the actual care that took place during that period.
If the Tribunal finds that there was a change in the percentage of care from the relevant commencement date, the percentage of care determined by the AAT1 on 16 August 2022 should be revoked and replaced. If, and only if, this is the case, the following remaining issues fall for consideration:
(a)What is the new percentage of care determination?
(b)What is the date from which the new percentage of care determination should have effect for the purposes of child support? Generally speaking,[5] this date would be either:
[5] However, see further discussion at paras [22]–[23] below.
·
From the date the objection was lodged,[6] which was on
21 February 2022;[7] or
·
From the date that the change in care was notified, being
24 January 2022.[8]
[6] Section 87AA(1) of the Collection Act provides that where an objection is not lodged within 28 days of a percentage of care determination, and the objection is allowed in a way that has the effect of varying the percentage of care determination or substituting a new care percentage determination, the objection decision will have effect from the date the objection was lodged.
[7] R1, T17, p 166.
[8] R1, T13, p 145.
BACKGROUND
The Applicant and the Other Party are the separated parents of two children. The present application relates only to the care of one of those children, being the older child of the two (the Child).
A child support case was first registered in relation to the Child on 1 August 2020.[9]
[9] R1, T31, p 260. For completeness, the child support case for the child ended in 2021 as a result of the child reaching 18 years of age.
With effect from 1 May 2019, the assessment of child support for the Child reflected that, from 16 March 2019, the Other Party had 51% care of the Child and the Applicant had 49% care of the Child (existing care percentage determination).[10]
[10] R1, T31, p 254
On 24 January 2022, the Other Party notified a delegate of the Respondent that from
1 November 2020, she had 100% care of the Child and the Other Party had 0% care of the Child.[11][11] R1, T13, p 145..
On 15 February 2022, a delegate of the Respondent decided that there was insufficient evidence from both parties regarding their respective percentages of care of the Child and rejected the change in care reported by the Other Party (original decision).[12]
[12] R1, T15, pp 151-152.
On 21 February 2022, the Other Party objected to the original decision.[13]
[13] R1, T30, p 226.
On 22 April 2022, a delegate of the Registrar disallowed the Other Party’s objection (objection decision).[14]
[14] R1, T24, pp 184-186.
On 13 May 2022, the Other Party applied to the AAT1 for a first review of the objection decision.[15]
[15] R1, T2, p 5.
On 16 August 2022, the AAT1 made the Reviewable Decision.[16] In its decision, the AAT1:
(a)Noted the Other Party’s contention that the Child had lived with her full-time since November 2020, while their other child lived full-time with the Applicant.[17]
(b)Noted that, while the Applicant did not participate in the AAT1 hearing, the evidence showed that, in a conversation with a delegate of the Respondent, the Applicant had stated that the Child chose to move between the parents’ houses.[18]
(c)Was satisfied that the existing care percentage determination did not reflect the care of the Child that was actually taking place, and decided to revoke the existing care percentage determination and make new determinations that the Other Party was providing 100% care to the Child and the Applicant was providing 0% care to the Child from 1 November 2020.
(d)Determined that:
(i)the Other Party’s increased care percentage of 100% from 1 November 2020 had effect from 24 January 2022,[19] because the Other Party had notified the change in care more than 28 days after the change in care occurred; and
(ii)the Applicant’s decreased care percentage of 0% from 1 November 2020 had effect from 1 November 2020.[20]
[16] R1, T2.
[17] R1, T2, p 6.
[18] R1, T2, p 7.
[19] R1, T2, p 8.The Tribunal considers this date was incorrectly recorded and should read 23 January 2024, being the day before the notification of the change in care in accordance with s54F(3)(b)(i) of the Assessment Act.
[20] R1, T2, p 8.
On 27 August 2022, the Applicant applied to the Tribunal for review of the Reviewable Decision.[21]
[21] R1, T1.
LEGISLATIVE FRAMEWORK
The relevant legislation is contained within the:
(a)Child Support (Assessment) Act 1989 (Cth) (the Assessment Act); the
(b)Child Support (Registration and Collection) Act 1988 (Cth) (the Collection Act); and the
(c)Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018 (Cth) (the Amendment Act).[22]
The relevant policy is contained in the Guides to Social Policy Law: Child Support Guide (the Guide). As established in Minister for Home Affairs v G and Another [2019] FCAFC 79 (G), the Tribunal is to apply Ministerial policy, unless there are cogent reasons not to do so.[23]
15.The Assessment Act requires the Registrar to determine a person’s percentage of care where a person has had, or is likely to have:
(a)no pattern of care for the child (s 49(1)(a) of the Assessment Act);[24] or
(b)a pattern of care that corresponds with the actual care[25] of the child
(ss 50(1)(a) and 50(3) of the Assessment Act),[26]
during such period (the care period)[27] as the Registrar considers, having regard to all the circumstances.
[22] The Amendment Act came into effect on 23 May 2018. Relevantly, the Amendment Act amended some provisions of the Assessment Act.
[23] G at [57]-[62].
[24] The Tribunal notes in this context that the Applicant claims to have had ‘a lot to with the child’s expenses’ during the care period (R1, T1, p 3).
[25] Section 54A(1) of the Assessment Act provides that the actual care of a child that a person has or is likely to have had may be worked out on the number of nights of care. The concept of ‘care,’ however, is broader than the provision of accommodation on any given night, and percentage of care does not necessarily need to be determined by reference to a time-based calculation (Polec & Staker & Anor [2011] FMCAfam 959 at [56]; P v Child Support Registrar [2013] FCA 1312 at [107]; and P v Child Support Registrar [2014] FCAFC 98 at [47]. See also Parent 1 and Child Support Registrar and Parent 2 [2013] AATA 562 at [33].[26] The Tribunal notes in this context that in the present matter, there is no dispute that the Applicant had a pattern of care during the care period.
[27] A ‘care period’ does not have any fixed duration and is generally a 12-month period from the day on which the actual care of a child changed, however there are some circumstances in which a shorter or longer period may be more appropriate (the Guide at 2.2.1). In any event, the relevant care period is now in the past and as such the Tribunal is required to determine the actual care that occurred during the relevant period.
If there has been a change in the pattern of care subsequent to a percentage of care determination, a new percentage of care determination can be made only if the existing percentage determination that was made under ss 49 or 50 of the Assessment Act in respect of a particular care period is revoked, under Subdivision C of Division 4 of Part 5 of the Assessment Act (ss 49(1)(b) and 50(1)(b) of the Assessment Act).[28]
For completeness, s 51 of the Assessment Act may apply in circumstances where a care arrangement, such as a Court order, applies in relation to a child or children, but actual care does not or did not comply with the relevant care arrangement.
Revocation of existing care percentages
The revocation of care percentages is dealt with in Subdivision C of Division 4 of Part 5 of the Assessment Act.
The relevant provisions are ss 54F, 54G and 54H of the Assessment Act.
An existing percentage of care determination must be revoked where the care of a child has changed pursuant to, relevantly:
(a)Section 54F of the Assessment Act – where there is a change to the person’s cost percentage, that is, the percentage of a child’s costs that the person meets through care.[29] Section 54F can only apply if s 54G does not apply.[30]
(b)Section 54G of the Assessment Act – where, under the new percentage of care determination, a responsible person who was previously assessed to have at least ‘regular’ care of the child is now determined to have ‘less than regular care’[31] of the child, despite the child being made available by the other responsible person.[32]
(c)Section 54H of the Assessment Act – where the Registrar is notified, or otherwise becomes aware, that the existing percentage of care determination does not reflect the care that is taking place. In these circumstances, the Registrar may exercise its discretion to revoke the existing percentage of care determination but is not required to. Section 54H can only apply if ss 54F and 54G do not apply.[33]
[29] For a cost percentage to apply, s 55C of the Assessment Act provides that the minimum care percentage is 14%. Therefore, ss 54F and 54G of the Assessment Act are enlivened only if the Tribunal were to find that the Applicant had at least 14% of the care of the child.
[30] Section 54F(1)(c) of the Assessment Act.
[31] In this context, ‘regular care’ is defined to be at least 14% to less than 35% of the care of the child (the Guide at 2.2.1). As to determining whether care exists, further refer to the Guide at 2.2.1.
[32] As s 54F of the Assessment Act can only apply if s 54G of the Assessment Act does not apply, and s 54H of the Assessment Act can only apply if ss 54F and 54G of the Assessment Act do not apply (see [21(a)] and [21(c)] and related footnotes, above), it is therefore necessary for the Tribunal to first consider the applicability of s 54G of the Assessment Act.
[33] Section 54H(1)(c) of the Assessment Act.
If ss 54F, 54G or 54H of the Assessment Act do not apply, the existing percentage of care determination cannot be revoked and will continue to apply.
Date of effect
If there was a change in care, and the Tribunal were to revoke the existing care determinations under either ss 54F or 54H of the Assessment Act, the revocation would take effect as follows:
·For the parents whose care has increased – from the day before the notification of the change in care (being 23 January 2022 in the present matter).[34]
·For the parent whose care has reduced – from the day before the change of care day (being 31 October 2020 in the present matter).[35]
[34] Section 54F(3)(b)(i) or s54H(3)(b)(i) of the Assessment Act.
[35] Section 54F(3)(b)(ii) or 54H(3)(b)(ii) of the Assessment Act.
If the Tribunal makes a revocation decision under s 54G of the Assessment Act, that decision would take effect at the end of the day before the day on which the person ceased the previously established pattern of care.[36]
[36] Section 54G(2)(b) of the Assessment Act.
EVIDENCE
The matter was heard on 24 April 2024. The Applicant and the Other Party were
self-represented. The Respondent was represented by Mr Mathew Burnham from Sparke Helmore Lawyers. The Parties appeared by telephone and no witnesses were called.The Tribunal admitted the following documents into evidence:[37]
[37] Transcript, pp 2-4.
(a)Documents showing car payments and expenses, filed with the Tribunal on
27 August 2022 (Exhibit A1);(b)Copy of HIF Insurance card, filed with the Tribunal on 27 August 2022 (Exhibit A2);
(c)Statement of Applicant’s Father, filed with the Tribunal on 15 October 2023 (Exhibit A3);
(d)Electronic equipment receipt from Camera Electronic, filed with the Tribunal on
26 October 2023 (Exhibit A4);(e)School fees payment receipt for 2019 in relation to the Child, filed with the Tribunal on 26 October 2023 (Exhibit A5);
(f)Bundle of bills and bank statements of various dates, filed with the Tribunal on
15 February 2023 (Exhibit A6);(g)Bank statement with note in relation to iPhone and data, filed with the Tribunal on 15 February 2023 (Exhibit A7);
(h)Reply of the Other Party to Applicant’s evidence, filed with the Tribunal on 15 March 2023 (Exhibit OP1);
(i)Letter from MG, dated 31 March 2022, together with covering email dated
29 July 2022 (Exhibit OP2);(j)Section 37 T-Documents comprising T1 to T31, pages 1 to 264, filed with the Tribunal on 7 October 2022 (Exhibit R1); and
(k)Respondent’s Statement of Fact, Issues and Contentions dated 9 May 2023, comprising pages 1 to 10, filed with the Tribunal on 9 May 2023 (Exhibit R2).
The Tribunal is satisfied that all the relevant evidence was before the Tribunal and that the parties were provided an opportunity to address it, either orally or in writing.
The Parties’ evidence
The Applicant and the Other Party gave evidence and made submissions in support of their respective positions, in writing and orally at hearing.[38]
[38] See A1 to A7, OP1 and OP2 and transcript, pp 12 to 31.
The Applicant
The Applicant gave evidence that he got a car for the Child when she was about
16 or 17 years old so that she could do her driving lessons in it. The Applicant said that he paid all the car expenses such as registration, insurance, fuel, servicing and parts as well as for the driving lessons the Child took at the time.[39] The Applicant said that the Child has had the use of the car since she obtained her licence to the present day, and that he still pays for the related expenses.[39] See A1, for example, and Transcript pp 12-13.
As to the private health insurance membership he previously maintained for the Child, the Applicant said that this has been cancelled and he cannot recall the exact years during which he held the policy.[40]
[40] Transcript, p 13.
Regarding the statement from his Father that the Applicant had been responsible for the full time care of the Child since she was born,[41] the Applicant added that his Father ‘sees
[the Child] a lot,’[42] so it is on this basis that his Father knows this to be the case.[41] A2.
[42] Transcript, p 15.
When asked to give context to his evidence of having purchased camera equipment and a laptop for the Child in August 2022,[43] as well as art equipment in the past, the Applicant said his purchases served as replacement items from when the Child’s items were stolen from the car in June 2022. The Applicant said that the camera equipment was for the Child’s personal use.[44]
[43] This being outside the relevant period for present purposes.
[44] Transcript, p 16.
As to the invoice for the Child’s school fees for 2019 issued to the Applicant,[45] the Applicant said he paid the Child’s school fees for the 2019 school years as well as the fees for some of the other school years. The Applicant said the Child had won a school scholarship in
year 11, and so, he believes, the Child paid her own school fees for year 12.[46][45] A5.
[46] Transcript, p 16.
When asked about the bundle of documents provided that included bank statements and telephone bills,[47] the Applicant said some of the bank records are for items he has paid for and that he has also sent money to the Child for other things. The Applicant said that the Child first got a mobile phone in high school and that he usually paid $100 per month for the Child’s phone expenses, which he currently still pays.[48]
[47] A6.
[48] Transcript, p 18.
In addition, the Applicant emphasised that he helped the Child get a job at her local IGA, where she worked on Thursday nights and Saturday mornings while she was in year 11 and part of year 12. The Applicant said he would drop the Child off and pick her up from her job, reflecting that the Child stayed with him at those times, that is, on those days of the week that the Child worked at the IGA. The Applicant said that these weren’t the only nights that the Child would stay with him because they were doing a lot of driving lessons together in the evenings at that time.[49]
[49] Transcript, pp 20-21.
The Other Party
The Other Party noted that the letter from the Applicant’s Father is, for all intents and purposes, a character witness, whereas she would argue the validity of that letter in comparison to the email provided on her behalf by employer, landlord and neighbour, MG.[50]
[50] See OP2, email from MG dated 29 July 2022, confirming that from the latter half of 2020 and in 2021 the Child was 100% in the Other Party’s care.
At hearing, the Other Party added:[51]
OTHER PARTY: I also referred to the fact that we have two children, and I know that this case is not about our younger daughter … but in terms of the statement about us having 50-50 shared care, then I always acted in the light of us having 50-50 shared care. And whether that – our daughters don’t – didn’t and don’t choose to live in the same premises, the care and the 50-50 statement is accurate in that if one child was at one house the other child was at the other. So I need to make that applicable just in the case that when [the Child] was at my house, [their younger daughter] was at [the Applicant’s] house and vice versa. So in that period of time when I was actually able to see my [younger daughter], that was what was happening. And I was caring [for] the needs of [the Child] who was going through year 11, year 12 and significant psychological issues at the time as well as dealing with year 11 and 12 study. And that, of course, was my priority and it wasn’t in any way about restricting [the Child] from seeing her father. And so in terms of the times that she did spend with – at her father’s house and with her father and driving lessons, et cetera, which is all very – I consider that to be very valuable and there was never any time when I didn’t allow that to happen. And in terms of where [the Child] slept at night, and the care that she was getting, it was about where she wanted to be at the time, and about the stability she needed just to be in one house. It wasn’t about [the Applicant] personally, or his care or his love for her as a father, it was about where she chose to be…
MEMBER: So on that basis, [the Other Party], what do you say then about the statement from [MG] saying, ‘In the latter half of 2020 and in 2021, [the Child] was 100 per cent living in her mum’s care’?
OTHER PARTY: … Because basically, that’s what he witnessed and that was – [MG] is my boss, [MG] is my landlord and [MG] is my next door neighbour, and so, therefore, he was aware of the circumstances in my life that were about [the Child] staying at the house at [address]. And enough to know that [the Child] was basically living at my house during that period of time in full-time care, other than the odd night or two or afternoon or weekend or albeit a holiday to her grandfather’s farm, she was in all intents and purposes living at my house full-time, except for the valuable time she spent with her father.
[51] Transcript, pp 23 to 24.
The Other Party responded to the Applicant’s evidence regarding the Child’s school fees, health insurance for the Child and other expenses, as follows:[52]
[52] Transcript, pp 24 to 29.
(a)The Child received a scholarship in the amount of what might have been $1,000, for outstanding school work. The money went towards a MacBook computer, which she and the Child went ‘halves in’.[53]
(b)Regarding the Child’s school fees, she believes that after her separation from the Applicant, he did go in and pay for half of one year’s school fees for the Child. She was in charge of paying for the majority of the Child’s schooling. She was given money from her stepfather for doing so, given their low-income situation.[54]
(c)
Regarding the theft of the contents of the car, this occurred around March or
April 2022,[55] when the Child and her partner were on their way on holiday. The camera belonged to the Child’s partner, not her, and the laptop, iPad, and art equipment that were stolen belonged to the Child. She understood the Applicant had an insurance claim for those items.[56]
(d)As to the Child’s health insurance policy, while the Other Party and the Applicant were in partnership she ‘always maintained a family policy for essentials cover’. Just prior to their separation, the Applicant opened his own health insurance fund because his needs were beyond the essentials cover. After their separation, the Applicant added the Child (and their younger daughter) to his policy and paid for a family policy without her knowledge. At that time, she was continuing to pay the existing family policy, so the Child (and her younger sister) were being insured twice. She understands though, that the Applicant took ownership of the additional policy to cover the Child’s (and her younger sister’s) orthodontic care. She has since reinstated essential cover for herself, the Child and her younger sister.
(e)The Child’s mobile phone was purchased when the Child started high school and was billed to the Applicant’s business account. The Applicant continues to pay for the Child’s phone although the Child has the financial capability to meet this expense herself.[57]
(f)The same applied to the Child’s car. The Applicant executed all the driving lessons with the Child, paid for the car in full, paid for registration and fuel even though the Child could take responsibility for this herself. The Other Party recognised that it is an extremely generous gesture from the Applicant, and a way that he feels he can care for his daughter.[58]
[53] Transcript, p 24.
[54] Transcript, p 25.
[55] Again, this is outside the relevant period for present purposes.
[56] Transcript, p 26.
[57] Transcript, p 27.
[58] Transcript, p 28.
CONSIDERATION
The Reviewable Decision concerns the care of the Child in the period 1 November 2020 (the date of the claimed change in care)[59] to 26 November 2021 (being the day before the child turned 18 years of age) (the care period).
[59] The Other Party contends that the Child was 100% in her care from 1 November 2020 onwards. See [7] above.
Whether the existing care percentage determination should be revoked and replaced
The task for the Tribunal is to determine what percentage of care the Applicant and the Other Party each had of the Child during the care period, and, if there was a change in care, from what date that change in care occurred.
If the Tribunal:
(a)is satisfied that the pattern of care was 100% to the Other Party and 0% to the Applicant, it should affirm the Reviewable Decision.
(b)is not satisfied there was a change in care, it should set aside the Reviewable Decision and restore the existing care determination, being 49% to the Applicant and 51% to the Other Party.
(c)is satisfied that the pattern of care was some other percentage between the Applicant and the Other Party, then the Tribunal should revoke the existing care percentage determination consistent with those findings.
Was there a change in care? If so, on what date did the change in care occur and what is the date of effect?
The Tribunal has considered the Parties’ evidence and submissions and considers the Parties have both been consistent over time regarding their claimed division of care and were credible and clear witnesses. The Tribunal has formed the view that the Parties’ evidence, considered together, represents a largely similar state of affairs as to the actual care of the Child during the care period.
The Tribunal accepts that during the care period, the actual care of the Child was as follows:
(a)The Applicant provided for some of the Child’s expenses (car and related expenses, phone, health care, art equipment, camera equipment and computer expenses).
(b)The Child spent time with the Applicant, that he took her for driving lessons, drove her to and from her casual work shifts and paid for some of her personal expenses and health care for a time.
(c)The Child chose to go between the homes of the Applicant and the Other Party and at times would do so.
(d)Having said that, while the Other Party in no way restricted the Child from seeing the Applicant, in practical terms the child was living in the Other Party’s home on a full-time basis, where the Other Party cared for her personal, emotional, financial and educational needs.
On this basis, the Tribunal finds that during the care period, the pattern of care was
100% to the Other Party and 0% to the Applicant.
CONCLUSION
The Tribunal has found that the pattern of care during the care period was 100% to the Other Party and 0% to the Applicant.
As the Tribunal’s finding represents there was no change in the percentage of care from the relevant commencement date from that determined in the Reviewable Decision:
(a)the issue of the date of effect does not fall for consideration; and
(b)the correct or preferable decision is to affirm the Reviewable Decision.
DECISION
The Reviewable Decision is affirmed.
I certify that the preceding one hundred and forty six (46) paragraphs are a true copy of the reasons for the decision herein of Member L M Gallagher
..........[Sgd]..............................................................
Associate:
Dated: 4 September 2024
Date of hearing: 24 April 2024 Representative for the Applicant: Self-represented Solicitors for the Respondent: Mr Mathew Burnham, Sparke Helmore Lawyers Representative for the Other Party Self-represented
A child cannot be in the care of more than one person at the same time (s 54A(3) of the Assessment Act).
Key Legal Topics
Areas of Law
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Family Law
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Administrative Law
Legal Concepts
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Appeal
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Procedural Fairness
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Statutory Construction
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