PIPER & CHURCHILL
[2017] FCCA 1359
•23 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PIPER & CHURCHILL | [2017] FCCA 1359 |
| Catchwords: FAMILY LAW – Interim Parenting – time with father. |
| Legislation: Family Law Act 1975, ss.60B, 60C, 60CA, 60CC, 61DA, 61DB, 65DAA |
| Cases cited: Goode v Goode (2007) 36 FamLR 422 Slater & Light [2011] FamCAFC 1 |
| Applicant: | MS PIPER |
| Respondent: | MR CHURCHILL |
| File Number: | PAC 2795 of 2016 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 2 June 2017 |
| Date of Last Submission: | 2 June 2017 |
| Delivered at: | Parramatta |
| Delivered on: | 23 June 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Cairns |
| Solicitors for the Applicant: | Legal Aid New South Wales |
| Appearing for the Respondent: | In person |
PENDING FURTHER ORDER
All previous parenting orders are discharged.
That the parties shall have equal shared parental responsibility for the child X born on (omitted) 2013.
That the child shall live with the mother.
That, commencing on Friday 23 June 2017, the child shall spend time with the father each alternate weekend from 5pm Friday to 6.30pm Sunday.
That for the purposes of the child spending time with the father, changeover shall occur inside the (omitted) McDonald's at the commencement and conclusion of all periods of time the child is spending with the father or as otherwise agreed in writing between the parties.
That the father is restrained from consuming alcohol for a period of no less than 12 hours prior to the time the child is due to come into his care and for the duration of the time that the child is in his care.
That both parties are restrained from using illicit substances for a period of no less than 12 hours prior to the time the child is due to come into their care and for the duration of the time that the child is in their care.
That both parties are restrained from denigrating the other party in the presence or hearing of the child, or permitting any other person to do so.
That both parties shall keep each other informed of their current contact numbers, residential address and email address and shall notify the other parent within 48 hours of any change of details.
That both parties shall keep each other advised of any medical emergency relating to the child or significant illness suffered by her, including sufficient details to enable both parties to be consulted with respect to and fully advised regarding such illness or condition and any treatment recommended or provided and to be informed of the details of any hospital if relevant and to visit her in hospital if she were to be admitted.
List the matter for directions at 9.30am on 10 October 2017.
IT IS NOTED that publication of this judgment under the pseudonym Piper & Churchill is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 2795 of 2016
| MS PIPER |
Applicant
And
| MR CHURCHILL |
Respondent
REASONS FOR JUDGMENT
Introduction
These are the Reasons for Judgment in relation to interim parenting proceedings concerning the child X born (omitted) 2013.
The parties to the proceedings are the Applicant mother Ms Piper and the Respondent father Mr Churchill.
The proceedings were commenced by way of Initiating Application filed by the Applicant on 20 June 2016 and the matter was listed for first return on 16 August 2016. In her Initiating Application the mother sought a number of interim and final parenting orders, including importantly an order for the child to be returned to her.
The first return date of 16 August 2016 was administratively adjourned with the consent of each of the parties to allow the parties to negotiate terms of settlement. By that stage the child was living with the mother.
On 27 October 2016 Orders were made that:
a)X shall live with the mother;
b)The father is restrained from consuming alcohol when X is in his care, and shall not consume alcohol for a period of 12 hours prior to the commencement of his time with X.
c)The parents shall keep each other informed of their current contact numbers, residential address and email address and shall notify the other parent within 48 hours of any change in details.
d)The parents shall keep the other advised of any medical emergency relating to X or significant illness suffered by her including sufficient details to enable both parents to be consulted with respect to and fully advised regarding such illness or condition and any treatment recommended or provided and to be informed of the details of any hospital if relevant and to visit her in hospital if she were to be admitted.
There was a further mention on 13 February 2017, when the father personally attended Court for the first time.
On 5 April 2017 the matter was set down for Interim Hearing at 10am on 2 June 2017, these are the Reasons for Judgment in relation to that hearing.
Competing Proposals
The interim parenting orders sought by the Applicant are contained in the Amended Initiating Application filed by the Applicant on 1 June 2017 and include the following:
a)That the mother shall have sole parental responsibility for the child X born (omitted) 2013.
b)That X shall live with the mother.
c)That X spend supervised time with the father at the (omitted) Children's Contact Centre.
d)That the father attend to hair follicle testing together with CDT and liver function blood testing as well as supervised chain of custody urinalysis to be tested for illegal drugs including but not limited to cannabinoids, opiates, amphetamines, meth-amphetamines, benzoids and if possible synthetic marijuana and the father shall sign any such releases as are required to ensure that the results are made available to the solicitor for the mother.
e)That the father enrol in and complete a course designed to promote drug and alcohol abstinence and a Parenting After Separation course.
f)That father be restrained from denigrating the mother or members of the mother’s family to X or in the presence of X or at all.
The interim orders sought by the Respondent father are contained in his Response filed 27 February 2017 as follows:
a)The parties have equal shared parental responsibility for the child X born (omitted) 2013.
b)The mother is restrained from consuming alcohol when X is in her care, and shall not consume alcohol for a period of 12 hours prior to the commencement of her time with X.
c)The child live with father.
d)X spend time with the mother:
i)Each alternate weekend from 5pm Friday to 5pm Sunday;
ii)At such other times as may be agreed between the mother and father in writing and not otherwise, noting such written agreement may include email or text message.
e)Changeover shall occur inside (omitted) McDonalds at the commencement and conclusion of all spend time with periods. The Respondent’s girlfriend Ms A born (omitted) 1989 shall meet the mother and child inside the restaurant.
f)Mr B not be allowed within 100 meters of X nor reside at the residential address of the mother and X.
Documents Relied Upon at Interim Hearing
The Applicant relied upon the following documents at the interim hearing:
a)Amended Initiating Application filed 1 June 2017;
b)Affidavit of Ms Piper filed 20 June 2016;
c)Affidavit of Ms Piper filed 30 May 2017;
d)Affidavit of Mr B filed 30 May 2017;
e)Affidavit of Ms A filed 2 June 2017; and
f)Amended Notice of Risk filed 29 March 2017.
The Respondent relied upon the following documents at the interim hearing:
a)Response filed 27 February 2017;
b)Affidavit of Mr Churchill filed 23 June 2016;
c)Affidavit of Mr Churchill filed 10 May 2017; and
d)Notice of Risk filed 27 February 2017.
The Law
The central enquiry is for the Court to determine the outcome that will be best for the child the subject of these proceedings.
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in a child’s best interests, the Court must consider the matters set out in s60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child.
The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]
[1] see for example Slater & Light [2011] FamCAFC 1at [45]
In applying the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence than to the benefit to the child of having a meaningful relationship with both of the parents.
It has been held that a meaningful relationship “is one which is important, significant and valuable to the child.”[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[3]
[2] Mazorski & Albright [2007] FamCA 520 at [26], cited with approval by the Full Court in
[3] Ibid at [122]
In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence.[4] The Court may include[5] in the order any safeguards that it considers necessary for the safety of those affected by the order.
[4] S.60CG(1)(b); see the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35]
[5] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests. In interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.[6]
[6] s61DA(3)
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provides for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests and reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[7]
[7] MRR v GR [2010] HCA 4 at [15]
The Full Court in Goode v Goode[8] mandated that this legislative approach must be followed in all parenting cases, and in particular set out the procedural steps to be followed on an interim application, noting that in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place.
[8] (2007) 36 Fam LR 422, (2006) FLC 93-286
As stated by the Full Court in Keats & Keats, in respect of the conduct of interim proceedings:[9]
…the principles that emerge from cases such as SS v AH [2010] FamCAFC 13, [are] namely, that apart from relying upon the uncontroversial or agreed facts, a judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.
[9] [2016] FamCAFC 156 at [9]
Issues in Dispute
The issues to be determined at this interim stage are:
a)Parental responsibility;
b)Whom the child shall live with; and
c)What time the child shall spend with the other parent and whether this time should be supervised by a Contact Centre in the case of the father.
A significant issue in the case is the alleged drug and alcohol use of the parties.
There is also the issue of the father allegedly engaging in family violence.
Uncontested Relevant Facts
The father was born on (omitted) 1989 and is currently 28 years of age.
The mother was born on (omitted) 1992 and is currently 24 years of age.
The parties commenced a relationship in about (omitted) 2011.
There is one child of the parties’ relationship the subject child of these proceedings, X born (omitted) 2013 who is currently four years of age.
The parties separated in approximately November 2014 however continued a sexual relationship until early 2016.
The mother currently resides in (omitted) a suburb of (omitted) Sydney and the father lives in (omitted) in the (omitted) of Sydney.
The Applicant has been the primary carer of the child since her birth.
After the parties separated, the child spent time with the father as agreed between the parties. This comprised periods of overnight stays, at times for four to five nights at a time, including in the period shortly before the filing of the Initiating Application.
Other Relevant Evidence
Evidence in the Applicant Mother’s Case
The mother describes a number of instances of family violence perpetrated by the father towards her. She describes the father as being “often aggressive and intimidating” during their relationship stating that this was often the case following the consumption of “significant amounts of alcohol”.
The mother describes an incident when she was pregnant with the parties’ child where the father kicked her in the stomach and pushed her into a “set of drawers with a TV on top”. The mother suggests that the father was under the influence of drugs or alcohol at the time stating that “his eyes were large and he was unable to put his sentences together” and that the father did not recall the events outlined when questioned by the mother that afternoon which had occurred earlier that morning.
The mother further describes an incident when the father struck the mother in the face when she was pregnant with the parties’ child and that the following day the mother had a bruised eye.
The mother alleges that the father has also threatened to burn her car.
In October 2016 the father had been staying at the mother’s residence following the death of the father’s younger brother. The mother says she woke one night with the father standing over her bed and that the father had gone through her text messages on her mobile phone. The mother says that the parties began a verbal argument “which became a physical fight” and that the child woke during the fight and asked “why are you fighting?” The mother alleges that the father was intoxicated at this time.
The mother lists a number of occasions in her Affidavit filed 20 June 2016 where she opines the father has been intoxicated or affected by illicit substances. She says that during their relationship the father would binge drink from Thursday to Sunday each week by drinking “a case of beer and follow it up with a bottle of bourbon”. She describes being concerned around the time she was due to give birth to the parties’ child as the father was “extremely drunk”. The mother says that the father crashed his car in the backstreets of (omitted), however there was no police involvement and there is no suggestion by the mother in this paragraph[10] of her evidence that the father was affected by drugs or alcohol.
[10] Paragraph 53 of the mother’s Affidavit filed 20 June 2016
The mother says that the father has used a number of illicit substances “including pills, speed, marijuana and cocaine”.
The mother says that in October 2016 she was driving the father to a friend’s house when he told the mother he had been “snorting cocaine” and offered the mother some, which she rejected. The mother believes the father was drinking at this time as she could smell bourbon and coke in his cup. During this time the father allegedly became angry toward the mother questioning her about a male friend. The mother says the father began calling her “a slut” and “a dirty slut” whilst the child was in the car. The mother’s evidence is that she turned the car around to drive the father back to his friend’s house where upon stopping the vehicle the father unbuckled the child to remove her from the car. The mother exited the car to stop the father from removing the child and at this point the father allegedly flicked the mother on the nose, grabbed her mobile phone, pinned the mother to the dashboard of the car and held the mother’s arm down to stop her from taking her phone back. The mother at this point bit the father on the arm. The father again tried to remove the child from the car with the mother trying to stop him. He kicked the mother twice in the left leg. The mother and the father’s friend managed to remove the father from the back of the car before he again managed to enter the vehicle through the front passenger seat where he again tried to remove the child. As the mother tried to block the father with her arm he grabbed the mother by the arm and said “I’ll break your fucking arm”. The mother eventually called 000 and it was not until this point that the father left the vehicle.
The mother attended (omitted) Police Station to report the matter and made a statement to Police.
The mother says that she remains fearful of the father and that she has not slept well since the assaults.
The mother admits that she smoked marijuana prior to her pregnancy with the child and that since the birth of the child she smokes “significantly less”. The mother further admits that she too “drank alcohol to excess” during the parties relationship however there is no evidence in the mother’s Affidavit as to whether this remains the case or not.
The mother annexes to her Affidavit filed 30 May 2017 a positive urinalysis drug screening result of the father dated December 2016 which showed positive results for Morphine and Codeine. She also annexes a urinalysis drug screening result of herself dated 22 December 2016 which tests negative to opiate, amphetamine, cannabis, cocaine and benzodiazepine.
Evidence in the Respondent Father’s Case
In approximately April 2016 the mother commenced a romantic relationship with Mr B. The father annexes to his Affidavit filed 10 May 2017 a number of text messages sent to the father from Mr B on 15 September 2016, which are to say the least, concerning.
The father reported the text messages to (omitted) Police on 16 September 2016.
The father stayed at the mother’s home for a period of time between September 2016 and October 2016 following the death of his brother. He says that during this time he and the mother did not “see eye to eye on many things” but that he wanted to stay there for the wellbeing of their child given the text messages he had received from Mr B earlier in the month. The father says that on 24 September 2016 the child had also told him that she was “scared at mummy’s” and that she had told the father’s girlfriend that “I want to live with you and daddy, I don’t want to live with mummy anymore”.
The father alleges that the mother told him in around October 2016 that Mr B had attempted to strangle her and dragged her by the hair whilst he was driving her to work.
The father continued to receive messages from Mr B in October 2016 with one particular message sent to the father and annexed to the father’s Affidavit being a photograph of a gun with a message saying “Brother boy where you at tonight I have that gun you wanted”. The father says that he showed the mother the text message from Mr B when she arrived home and that her response was “he is no-one to worry about”. This along with the information provided by the mother about Mr B strangling the mother did not ease the father’s mind about the intentions of Mr B.
The father says that on 24 October 2016 he went to a friend’s house to help her paint her house and on 26 October 2016 he had telephoned the mother to pick him up from the friend’s house to go back to the mother’s house. The father says that on the drive home the mother received a text message from Mr B saying “same time tonight babe?” and that the parties then began to argue. The father says that he told the mother he wanted to go home to his partner Ms A and that the mother responded with “you will regret it. I’ll make sure you never see X again”.
The father says that the mother began driving back to the friend’s house and struck him in the head. He says that the child began to yell “I’m coming with you daddy. I want to go with you and Ms A Daddy” and it was at this point that the mother stopped the car and the father tried to remove the child from the back seat. The father says the mother’s “arm was around my neck and she bit my left shoulder” and that she pushed the father into the open passenger side door when he tried to retrieve his belongings. The mother then left with the child.
On 28 October 2016 the father was contacted by Police in regards to the report he made to them on 16 October 2016 of the messages he had received from Mr B.
The father attended (omitted) Police Station on 29 October 2016 regarding the text messages. Later that afternoon the Police again contacted the father advising him that a warrant had been issued for his arrest following the mother’s report to the Police of the incident on 26 October 2016. The father attended the Police Station later that evening and was charged. An Apprehended Domestic Violence Order (“ADVO”) was made naming the mother as a protected person and the father as the Defendant. The child was later added as a protected person to the ADVO following the first Court event at Windsor Local Court on 10 November 2016.
On this date the parties entered into a Parenting Plan agreeing for the father to spend supervised time with the child each Saturday from 2pm to 5pm commencing 19 November 2016 at McDonald's (omitted) and at any other agreed times and for the father to have telephone communication with the child each Monday, Wednesday and Friday between 7pm and 7.30pm commencing 11 November 2016.
The father in his evidence describes the time he has been spending with the child since the parenting plan was agreed to. He says that he misses the child and that he wants to see her having a good relationship with both him and the mother.
Primary Considerations and Risk of Harm
The protection of the child from harm is an important matter for the Court’s consideration when weighing up the primary considerations. Indeed, the Court must prioritise the need to protect the child from harm as against the benefit of the child having a meaningful relationship.
Many of the facts alleged by the parties are disputed.
Even if the Court is unable to make findings of fact about many of the issues, the Court is still obliged to take into consideration the various allegations which have been made. In doing so the Court must weigh up any risk of harm to the child, all the while considering what might be in the child’s best interest. It is the existence and magnitude of the risk of harm that is a fundamental matter to be taken into account in deciding what orders are to be made in respect of where the child is to live, and what time, if any, they are to spend with the other parent.[11]
[11] M & M (1988) 166 CLR 69 at 77
At the time these proceedings commenced, the mother sought orders for the child to spend time with the father each alternate weekend from 5pm on Friday to 5pm Sunday. By her Amended Initiating Application, filed on the eve of the Interim Hearing (and without leave of the Court), the mother sought an order for the child’s time with the father to be supervised. As outlined in the parties’ evidence, a number of events have occurred since June 2016 which might explain the change in the mother’s position, in particular what occurred in October 2016.
Tendered in the proceedings were various COPS records, material produced under subpoena from the Department of Family and Community Services and some counselling notes for the mother. It appears from the COPS entries that the father may have been charged with a breach of ADVO and common assault arising out of an incident between the parties on or about 26 October 2016.
The evidence in the father’s case, attached an “Advice of Court Result” indicating that the father plead guilty to a charge of breach of ADVO, for which he received a 12 month good behaviour bond and that the charge of common assault was listed for hearing on 9 June 2017. It may be that as at the time of the publication of this Judgment the father has either been convicted or acquitted in respect of that charge.
Both parties have provided to the Court in their evidence results of drug screening tests which they have completed. The mother’s results are all negative. As noted earlier in these Reasons, the father returned a positive result in late December 2016, for opiates (codeine and morphine). The results are said to be “consistent with medication(s) stated on the chain-of-custody form”. The results for 12 April 2017 annexed to the father’s Affidavit are negative.
Both parties agree that the child will benefit from a meaningful relationship with the other parent.
The Court has carefully considered the allegations of family violence and formed the view that the likely impact of those matters, should they ultimately prove correct, is such that there is no unacceptable risk of harm to the child in now spending unsupervised time with the father.
This is so particularly noting that the child had been spending significant and substantial time with the father prior to June 2016 (when she was three years old and in circumstances where the mother already had concerns about the father’s alleged alcohol and illicit substance abuse, and where there already existed some allegations of family violence) and that there are a number of protective factors contained in the orders.
Additional Section 60CC Factors
The child is four years of age. Both parties appear to agree that she has a close and loving bond with her father, and that she enjoys spending time with her father.
The child has always lived with the mother, who has been her primary carer. A change of residence at this interim stage of the proceedings and on the evidence before the Court is not in the child’s best interest.
The parties have both taken an interest in the child’s welfare, including major long-term decisions. They have, despite their separation, at times attempted to be supportive of each other and their co-parenting responsibilities.
However, there have been significant difficulties between the parties, particularly since the commencement of these proceedings, in their respective abilities to deal with the conflict between them and to place the child’s needs above their own. Once orders for time are made, it is likely that much of the conflict between the parties may be defused, as there will be more certainty about where the child is to live, what time the child is to spend with the father and in what circumstances.
The mother is employed and supports the child financially. It appears that although there is a child support assessment, the mother does not receive any child support from the father. The father says that he works as a (occupation omitted). He lives with his new partner and her two children.
While some of the actions which have been attributed to the father by the mother, if ultimately proven, may result in a finding that the father lacks insight into his actions and what is appropriate behaviour, and that he may be lacking in capacity to meet the child’s emotional needs. Such findings cannot be made at this interim stage of the proceedings where the evidence is in dispute and untested.
Likewise, some of the actions which have been attributed to the mother by the father, if ultimately proven, may result in certain findings that the mother’s capacity to meet the child’s emotional needs is in some ways deficient and that her demonstrated attitude to the responsibilities of parenthood is wanting. Once again, such findings cannot be made at this interim stage of the proceedings where the evidence is in dispute and untested.
These are only interim orders, and it is likely that if the matter proceeds to final hearing, there may be a time period of at least some twelve months before the matter is decided on a final basis, much depending on whether a Family Report is to be ordered.
The length of time that the matter will take to reach readiness for a final hearing is also something which the Court has considered in making these interim orders.
Parental Responsibility
Section 61C of the Act provides that each of the parents of a child who is not 18 years has parental responsibility for the child. This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order.[12] Section 61DA provides for a presumption of equal shared parental responsibility that applies when the Court makes a parenting order. The presumption may be rebutted in certain circumstances[13].
[12] See note 1 s61C
[13] See s61DA(3): in interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order
It is noted for the benefit of the parties that in making a final parenting order in relation to a child, the Court must disregard the allocation of parental responsibility made in the interim order.[14]
[14] s61DB
The Court is satisfied having considered all of the agreed facts and other relevant evidence, that the presumption of equal shared parental responsibility has not been rebutted. Given the allegations and denials of family violence, and that none of the evidence has been tested, the Court cannot be satisfied that there are reasonable grounds to believe that a parent has engaged in family violence.
The Court is of the view that it is in the child’s best interest for an order for equal shared parental responsibility to be made as it is important for the child for both of her parents to be involved in any long term decisions which will affect her welfare, care and development.
Section 65DAA is thus enlivened due to the order for equal shared parental responsibility. Relevantly, s65DAA states:
(3) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Having regard to the above criteria and the various considerations discussed throughout these Reasons, at this interim stage neither equal time nor significant and substantial time[15] are not supported by the facts in this matter.
[15] within the meaning of s65DAA(3)
Conclusion
In all of the circumstances and for all of the reasons set out above, it is in the child’s best for orders to be made as set out at the forefront of these Reasons.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 23 June 2017
Key Legal Topics
Areas of Law
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Civil Procedure
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Administrative Law
Legal Concepts
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Judicial Review
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Jurisdiction
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Standing
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Procedural Fairness
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Natural Justice
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Abuse of Process
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