STATE CENTRAL AUTHORITY & HANSEN
[2014] FamCA 868
•14 October 2014
FAMILY COURT OF AUSTRALIA
| STATE CENTRAL AUTHORITY & HANSEN | [2014] FamCA 868 |
| FAMILY LAW – CHILD ABDUCTION – HAGUE CONVENTION – Whether mother and children habitually resident in Australia or South Africa immediately before retention in Australia – whether retention of children is wrongful – whether father has and was exercising rights of custody having regard to applicable South African law – whether father acquiesced to the retention of the children in Australia in the context of ongoing discussion between the parents as to the return of the mother and children to South Africa – whether the children would be placed in an otherwise intolerable situation if return order made – machinery orders made for the return of the mother and children. |
| Family Law Act 1975 (Cth) Family Law (Child Abduction Convention) Regulations 1986 (Cth) Family Law (Child Protection Convention) Regulations 2003 (Cth) Children’s Act No. 38 2005 (South Africa) |
| C v S (minor: abduction: illegitimate child);Re J [1990] 2 All ER 961 De L v Director General, NSW Department of Community Services (1996) 187 CLR 640 |
| APPLICANT: | State Central Authority |
| RESPONDENT: | Ms Hansen |
| FILE NUMBER: | MLC | 5551 | of | 2014 |
| DATE DELIVERED: | 14 October 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Macmillan J |
| HEARING DATE: | 18 August 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Stoikovska |
| SOLICITOR FOR THE APPLICANT: | Department of Human Services, Legal Services Branch |
| COUNSEL FOR THE RESPONDENT: | Mr Mawson QC |
| SOLICITOR FOR THE RESPONDENT: | Clancy & Triado |
ORDERS
IT IS ORDERED THAT
The State Central Authority and the mother of the children E born
… 2011 and A born … 2012 make such arrangements as are necessary for the children to return to South Africa in the company of the mother by 11 November 2014 or such other date agreed upon in writing by the mother and the State Central Authority.
The Registrar of the Family Court of Australia hand over the passports of the mother and the children to the legal representatives of the mother upon the presentation of these orders to facilitate their return to South Africa in accordance with these orders.
The mother forthwith do all acts and things necessary to apply to the South African High Commission in the Australian Capital Territory for a visa that will enable her to accompany the children to South Africa and remain in South Africa for a period of not less than three (3) months to enable the institution of proceedings in South Africa with respect to parenting arrangements for the children.
Upon the mother receiving notification of the outcome of her visa application pursuant to paragraph 3 hereof the mother forthwith notify the State Central Authority as to the outcome of her visa application, the notification to include the provision by the mother to the State Central Authority of any relevant documentation and the like.
Within two (2) working days of receiving notification from the mother of the outcome of her visa application pursuant to paragraph 4 hereof, the State Central Authority:
a)shall notify the father by email or facsimile as to the outcome, including the provision of any relevant documentation and the like received from the mother; and
b)copy the solicitors for the mother into all correspondence sent to the father for the purpose of this notification.
Upon the father being notified that the mother has obtained an appropriate visa to enter South Africa pursuant to paragraph 5 hereof, the father shall:
a)within seven (7) days thereafter book and pay for or cause to be paid airline tickets for the mother and the children to return to South Africa and provide a copy of the tickets and travel itinerary to the State Central Authority for forwarding to the mother and the mother’s solicitors with the date of departure to be not less than fourteen (14) days after the date of purchase of the airline tickets; and
b)not less than seven (7) days prior to the intended date of departure deposit or cause to be deposited into an account nominated in writing by the mother the sum of AUD$18,473 for the accommodation and support of the mother and the children upon their return to South Africa; and
c)not less than fourteen (14) days prior to the intended date of departure provide to the mother and the mother’s solicitors a list of three (3) motor vehicles for the mother’s use upon her return to South Africa priced between ZAR 205,000 and ZAR 333,000 and not less than forty-eight (48) hours thereafter the mother shall nominate in writing her choice of one (1) motor vehicle from the list of three (3) motor vehicles provided by the father; and
d)not less than seven (7) days prior to the intended date of departure provide to the mother and the mother’s solicitors proof of purchase of the motor vehicle of the mother’s choice pursuant to paragraph 6(c) hereof.
Pending the children’s return to South Africa the Commissioner of the Australian Federal Police and all Federal Agents of the Australian Federal Police retain the names of the children E born … 2011 and A born … 2012 on the All Ports Watch Alert System at all international points of departure from Australia.
Upon receipt of the airline tickets referred to in paragraph 6(a) hereof, the State Central Authority shall provide a copy of the tickets and travel itinerary and a sealed copy of these orders to the Marshal of the Family Court of Australia and the Australian Federal Police.
Upon receipt of the airline tickets pursuant to paragraph 8 hereof, the Australian Federal Police shall remove the names of the children E born … 2011 and A born … 2012 from the All Ports Watch Alert System to take effect from 12.00 am on the date of travel for which the airline tickets have been issued.
10. The Marshal of the Family Court of Australia and all Federal Agents of the Australian Federal Police and Officers of the Police Forces and Services of the various States and Territories are required and empowered to take all necessary steps to give effect to these orders.
11. The order for the return of the children to South Africa pursuant to paragraph 1 hereof shall lapse and the application for return shall be discharged in the event that:
a)the mother complies with her obligation pursuant to paragraph 3 hereof to forthwith apply for a visa and the mother’s visa application is refused; or
b)the father fails to provide the return airline tickets in accordance with paragraph 6(a) hereof; or
c)the father fails to pay the total sum of money referred to in paragraph 6(b) hereof by way of accommodation costs and support for the mother and children; or
d)the father fails to provide the mother with proof of purchase of the motor vehicle referred to in paragraph 6(d) hereof in accordance with paragraph 6(c) hereof.
12. There be liberty to apply in relation to the implementation of these orders.
13. The Form 2 application filed 25 June 2014 be otherwise dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym State Central Authority & Hansen has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 5551 of 2014
| State Central Authority |
Applicant
And
| Ms Hansen |
Respondent
REASONS FOR JUDGMENT
On 25 June 2014 the Secretary of the Department of Human Services representing the State Central Authority filed a Form 2 application pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) seeking the return of the children E who is three years of age and A who is almost 23 months of age to South Africa. It is submitted by the State Central Authority that the children have been wrongfully retained by the mother in Australia.
The mother, who is the respondent in this application, and the children left South Africa and travelled to Australia on 25 November 2013. The mother says that she told the father that “she wanted to return to Australia to see how things went” and that the father consented to her leaving South Africa with the children. That agreement was predicated on the mother and the children remaining in Australia until 15 January 2014. The mother’s father booked return airline tickets for the mother and the children.
On 11 December 2013, in the course of what the mother described as an exchange of messages “in which we both discussed our feelings, our relationship, our future and the future of the children”, she says that having explained to the father that she and the children were very happy in Australia he wrote “[s]tay in Australia then if you so (sic) unhappy with me, raise the kids by yourself and get a job, be independent, since that’s what you want so badly.” It is her evidence that shortly thereafter she cancelled the airline tickets booked for her and the children’s return to South Africa on 15 January 2014.
The mother’s case is that she was not habitually resident in South Africa at the time she allegedly retained the children and that the father did not have or was not exercising “rights of custody” in relation to the children and that on that basis the children had not been wrongfully retained in Australia. She further submitted that in any event the father acquiesced in the children remaining in Australia and/or that there is a grave risk that the children’s return to South Africa would expose them to physical or psychological harm or otherwise place them in an intolerable situation, and that the Court’s discretion being enlivened, I should exercise that discretion not to order the children’s return to South Africa.
BACKGROUND
The father is 25 years of age. He was born in South Africa. He is a full-time university student. The mother, who is 22 years of age, was born in Australia. She is engaged in home duties.
The mother moved to Johannesburg in South Africa to live with her mother and her mother’s partner in 2006. She was at that time only 14 years of age. The mother attended school in Johannesburg.
The father and mother met in or about 2009 when they were aged 20 and 17 respectively. It is the mother’s evidence and not the subject of dispute that she started spending three nights per week at the father’s home in Johannesburg where he lived with his mother and sister.
In 2010 the mother completed her secondary education in South Africa and was studying at university in Johannesburg. The mother says that the cost of her university course became an issue between her and her mother, who encouraged her to undertake a course of study with better employment prospects in Australia. As a result, in early 2011 the mother travelled to Australia and studied for a period of six months, qualifying as a pastry chef. She deposes that she and the father discussed her return to Australia and they agreed that, although they would stay in touch, they would also be free to see other people if they wished to do so. The father denies that he and the mother agreed that they were free to see other people and says that the mother was adamant that she would find a way to come back to South Africa to continue their relationship.
During the time the mother spent in Australia she discovered that she was pregnant, and in fact she was six months pregnant by the time she became aware that she was pregnant. The mother did not tell the father she was pregnant, only contacting him after E’s birth in mid 2011
There is some disagreement in relation to the manner in which the father accepted the news of E’s birth. It is the father’s evidence that at the time he was “utterly shocked” but that “[e]ventually, after processing the news and initial shock, I accepted that I was now a father and had to do what was best for my little girl.” The father further deposes that “[i]t remains my view that [the mother] fell pregnant on purpose in an attempt to secure a place in my family and my life”.
It is the mother’s evidence that she lived with her grandmother, the maternal great-grandmother, in Australia in the weeks following E’s birth. On 14 September 2011, when the child was around seven weeks of age, the mother travelled with her to South Africa where they lived with the father at his mother’s house.
On about 23 December 2011 the mother travelled, together with E, the paternal grandmother and paternal aunt, to Australia for a holiday. During this time the mother and E stayed initially with the maternal great-grandmother and then with the paternal grandfather. The father’s family stayed in a hotel. The father did not travel to Australia with the mother on this occasion. On 19 January 2012 the mother and E and the father’s family returned to South Africa.
The mother and E continued to live in South Africa with the father at his mother’s house until they returned to Australia on 1 May 2012, for what the mother says was a holiday. During this visit, the mother and E stayed with the mother’s father at his home in Melbourne. It is the mother’s evidence that it was during this visit that she discovered she was pregnant with the parties’ second child A and, upon learning of the pregnancy, she informed the father. The mother deposes that whilst the father was “indifferent about it” his family was very happy to learn of this pregnancy.
The mother and E returned to South Africa on 26 June 2012, again living with the father at his mother’s home. The mother says that during this time she and the father “had some discussions in which we agreed I would return to Australia so that [A] could be born there” to enable the child to obtain dual citizenship. On 26 September 2012 the mother travelled to Australia with E and the paternal grandmother with the intention of giving birth in Australia. During this time, however, the father determined that his university exam schedule would not permit him to travel to Australia for the birth, and the mother subsequently returned with E to South Africa in early October 2012.
On 9 November 2012 A was born in South Africa. The mother and the two children continued to live at the home of the maternal grandmother until their departure for Australia in November 2013.
It is common ground that in November 2013 it was agreed between the mother and father that the mother would travel with the two children to Australia until 15 January 2014, and return tickets were booked for that date. On 25 November 2013 the mother left South Africa with the two children and has remained in Australia with the children since that date.
LEGAL PRINCIPLES
The Family Law (Child Abduction Convention) regulations 1986 (Cth) (“the Regulations”) are the legislative foundation for the Convention on the Civil Aspects of the International Child Abduction referred to for convenience in these reasons as the Hague Convention. The objects of the Hague Convention are to :
(a)secure the prompt return of children wrongfully removed or retained in any Contracting State; and
(b)to ensure that rights of custody and of access under the law of one Contracting State are respected in the other Contracting States.
An application pursuant to the Regulations for the return of a child to his or her country of habitual residence is to be distinguished from an application to decide which of his or her parents that child should live with: DJL v Central Authority (2000) 201 CLR 226; Director-General, NSW Department of Community Services & JLM (2001) FLC 93-090.
Regulation 16 (1) provides that the Court must order the return of a child if:
(a)an application is made for the return of that child;
(b)that application is filed within one year after the child’s removal or retention; and
(c)the State Central Authority satisfies the court that the child’s removal or retention was wrongful as defined in subregulation (1A).
Regulation 16 (1A) provides as follows:
For subregulation (1), a child’s removal to, or retention in, Australia is wrongful if:
(a)the child was under 16; and
(b)the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; and
(c)the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; and
(d)the child’s removal to, or retention in, Australia is in breach of those rights of custody; and
(e)at the time of the child’s removal or retention, the person, institution or other body:
i)was actually exercising the rights of custody (either jointly or alone); or
ii)would have exercised those rights if the child had not been removed or retained.
Regulation 16(3) provides that the Court may refuse to order the return of the child if the person opposing that return establishes that:
(a)the person, institution or other body seeking the child’s return:
i)was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or
ii)had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or
(b)there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or
(c)each of the following applies:
i)the child objects to being returned;
ii)the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
iii)the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or
(d)the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.
PROCEDURE AND EVIDENCE
In this case the State Central Authority relies upon the following documents:
(a)The Form 2 application filed 25 June 2014 and the documents annexed to that application being;
i)affidavit of L P, affirmed 17 June 2014, attaching Instrument of Authority;
ii)application under the Convention dated 9 May 2014
iii)the father’s affidavit sworn 29 April 2014, with exhibits;
iv)the mother’s affidavit sworn 3 April 2014, with exhibits;
v)Orders made 7 April 2014 in the Family Court of Australia; and
vi)affidavit of Ms S as to the applicable law in South Africa, sworn 23 May 2014.
(b)The affidavit of Ms F filed 5 August 2014 and the document annexed to that application, being:
i)the father’s affidavit sworn 3 August 2014, with exhibits
(c)The affidavit of Ms F filed 18 August 2014 and the documents annexed to that application, those documents being:
i)the affidavit of Ms K, South African solicitor, sworn 16 August 2014; and
ii)the opinion of Ms W SC, senior advocate at the Johannesburg Bar, dated 16 August 2014.
The mother relies upon the following documents:
(a)her Amended Response to Initiating Application filed 18 August 2014;
(b)her affidavit filed 25 July 2014;
(c)her affidavit filed 5 August 2014; and
(d)the affidavit of Mr B filed 14 August 2014.
The State Central Authority bears the burden of proving that the retention of the children in Australia is wrongful as defined in sub-regulation (1A). The mother in this case does not concede that the children have been wrongfully retained in Australia. If the Court determines that the children have been wrongfully retained in Australia the mother bears the burden of establishing one of the grounds which would enliven the Court’s discretion not to order their return to South Africa.
The standard of proof as provided by s 140(1) of the Evidence Act 1995 (Cth) is the balance of probabilities.
Although it was foreshadowed at the mention of this matter that both the father and the mother would be required for cross-examination, ultimately neither counsel sought to cross-examine any of the witnesses and the matter proceeded by way of submissions. Although it was submitted by counsel for the State Central Authority that I should prefer the evidence of the father to that of the mother, neither the father nor the mother’s evidence has been tested and I am not persuaded that in the absence of that evidence being tested that I should adopt this course.
Where, as in this case, there are differences in the evidence of the parties, the fact that the evidence has not been tested can present some difficulties. As Jordon J said, which was cited with approval by the Full Court on appeal in Panayotides & Panayotides (1997) FLC 92-733:
… I simply must do the best I can. I look to the versions of each of the parties, I find the common ground, and I note the areas of conflict. I can look to the inherent probabilities. Of course, when one is talking about the intent of the parties, where this is a matter of some conjecture, one looks to the conduct of the parties, and any documentary or corroborative evidence which may help determine that issue.
I also do not accept as submitted by counsel for the State Central Authority that I should place any weight, either in terms of the mother’s credit or in relation to the question of whether the father has rights of custody, upon the mother’s evidence at paragraph 46 of her affidavit sworn 23 July 2014 where she says that she accepted that the father has “rights of custody for both children.” In her affidavit sworn 14 August 2014 the mother clarified her evidence on the basis that she said she had been referring to the laws of Australia.
Counsel for the State Central Authority submitted that in circumstances where the mother was describing the history of the children’s care prior to her departure for Australia with the children that she must have been referring to the laws of South Africa. Whilst it is clearly the case that the mother was describing the father’s involvement and relationship with the children prior to them leaving for Australia, it does not necessarily follow that the mother understood the concept of “rights of custody” or the basis upon which they might be determined, and that therefore when she deposed that she had been referring to the laws of Australia this was a disingenuous attempt on her part to resile from a concession she had made in relation to whether the father had rights of custody. Ultimately, it is a matter for the Court, not the mother, to determine whether the father has rights of custody and is exercising those rights based upon all of the evidence of the particular case. Whether or not the mother understood the legal concepts, it is clear based upon her evidence that she was questioning the level of the father’s involvement in the children’s lives.
The issues I must determine and the order in which I propose to deal with them are as follows:
(a)What is the children’s country of habitual residence?
(b)Did the father have rights of custody in the country in which the children resided immediately prior to their retention in Australia?
(c)If the father had rights of custody, was he exercising those rights at the time of the children’s retention in Australia or would he have exercised them but for the children’s retention in Australia?
(d)Was the children’s retention in Australia in breach of those rights of custody?
(e)Did the father acquiesce in the children remaining in Australia? and
(f)Would the children’s return to South Africa expose the children to a grave risk of physical or psychological harm or place them in an otherwise intolerable situation?
HABITUAL RESIDENCE
In LK v Director-General, Department of Community Services (2009) FLC 93-937 the High Court considering the concept of habitual residence said at paragraph 22 as follows:
… If the term “habitual residence” is to be given meaning, some criteria must be engaged at some point in the inquiry and they are to be found in the ordinary meaning of the composite expression. The search must be for where a person resides and whether residence at that place can be described as habitual.
The High Court went on to say at paragraph 23:
… First, application of the expression “habitual residence” permits consideration of a wide variety of circumstances that bear upon where a person is said to reside and whether that residence is to be described as habitual. Secondly, the past and present intentions of the person under consideration will often bear upon the significance that is to be attached to particular circumstances like the duration of a person’s connections with a particular place of residence.
At paragraph 25 their Honours said “it may be accepted that [h]abitual residence, consistent with the purpose of its use, identifies the center (sic) of a person’s personal and family life as disclosed by the facts of the individual’s activities” (see E F Scoles, P Hay, P J Borchers and S C Symeonides, Conflict of Laws, 4th ed (2004) at 247).
For the purposes of the Regulations, it is the child or children’s habitual residence immediately before their alleged wrongful retention that is in issue. The habitual residence of a child or children cannot be, as the High Court said at paragraph 34:
… confined to the intentions of the parent who in fact has the day-to-day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged.
There is in this case no dispute that the father’s habitual residence is South Africa. On the basis that the mother cannot unilaterally change the children’s place of habitual residence, any ambiguity or uncertainty that must be considered is, of necessity, with respect to the habitual residence of the mother and the children prior to their leaving South Africa.
The relevant date for determining the child’s habitual residence is the date of the alleged wrongful retention. That occurs, as stated in Murray v Director, Family Services (ACT) (1993) FLC 92-416 at 80,252, when “a child which has previously been for a limited period of time outside the state of its habitual residence, is not returned to that state at the expiry of such limited period”. There is no dispute in this case that the mother left South Africa with the children, by agreement with the father, in late November 2013 on the basis that she would return to South Africa with them on 15 January 2014. To that end the paternal grandmother booked return tickets for the mother and the children, which the mother says she cancelled shortly after 11 December 2013 when she says the father agreed to her remaining in Australia with the children.
In the Form 2 application filed 25 June 2014 the State Central Authority included in the details concerning the child’s retention as follows:
(i)On or about 23 November 2013, the requesting father agreed for the mother and children to Australia for a holiday until 15 January 2014 and return flights were booked for 15 January 2014.
(ii)On or about December 2013, the requesting father agreed to an extension for the holiday in Australia and the mother agreed to return with the children in March 2014.
(iii)On or about January 2014, the respondent mother indicated to the requesting father than she did not intend to return to South Africa with the children.
(iv)The father did not agree for the children to remain in Australia beyond March 2014,
(v)The paternal grandmother travelled to Australia on 17 March 2014 to visit with the mother and children and persuade the mother to return to South Africa with the children. The respondent mother refused to return with the children to South Africa.
(vi)On 1 April 2014, the requesting father instructed a solicitor to send a formal letter to the respondent mother requesting the children be returned no later than 7 April 2014.
(vii)On 3 April 2014, the respondent mother filed legal proceedings in the Family Court of Australia file number MLC 2822 of 2014, seeking an abridgement and for the children’s names to be placed on the [A]irport [W]atch [L]ist.
(viii)An Order was made in 7 April 2014 by the Senior Registrar of the Family Court of Australia, restraining the mother and father and their servants and/or agents from removing or attempting to remove, the children from the Commonwealth of Australia, and an order was made for the children’s names to be placed on the Airport Watch List.
(ix)The respondent mother has wrongfully retained the children in Australia in breach of the requesting father’s rights of custody.
At paragraph 15.5 of his affidavit annexed to the Form 2 application the father deposes that he and the mother agreed “that she and the minor children would return from their holiday on 15 January 2014 and their return tickets were booked for that date. However, the [mother] and I discussed the issue during December 1014 (sic) and decided that she and the minor children would stay a little longer in Australia on holiday.”
On 3 February 2014 the father sent the following message to the mother:
... so what you saying (sic) is, you not coming back at all? In march (sic) you changing your tickets? Make it clear and stop messing around, you telling me 110 percent you are now living in Australia.
It is not clear from the father’s evidence exactly when the discussions he refers to in December 2013 occurred and whether they took place prior to or after the mother cancelled the return airline tickets. There is no other evidence with respect to these discussions.
Although the mother asserts that the “father certainly gave me the impression over a period of some weeks that he has consented to me staying in Australia with the children although it was not his preferred position”, it is similarly not clear whether she is referring to the WhatsApp messages or some other discussions and if there were other discussions there is no evidence as to when those discussions took place or their content. However it is clear from the mother’s evidence that based upon the statements made by the father on 11 December 2013 she had cancelled the tickets that had been booked for her return to South Africa with the children.
It is reasonable to infer and I am satisfied that even if the father had agreed that the mother could extend her holiday in Australia that when the mother cancelled the tickets prior to the proposed return date on 15 January 2014 she had formed the intention to remain in Australia with the children. It is also reasonable in my view to infer based the exchange of messages between the father and the mother that the mother did not tell the father she had cancelled the tickets.
The mother disputes that either she or the children were habitually resident in South Africa prior to travelling to Australia in late November 2013. It was submitted on behalf of the mother that there has been some ambiguity about her habitual residence and that of the children, or at least the older child, between September 2011 and November 2013, but that the mother has been habitually resident in Australia since November 2013, and that on that basis the children should be regarded as being habitually resident in Australia at the time it is asserted they were wrongfully retained in Australia.
The mother’s evidence was that she lived in Australia until she was 14 years old, at which time she moved to South Africa. The mother says that she travelled back and forth between Australia and South Africa between September 2011 and 25 November 2013, that each time she did so she entered South Africa on a visitor’s visa, and after May 2012 a two-year Relative Permit, which has now expired. The mother also relied upon the fact that E was born in Australia in July 2011 and lived in Australia until September that year and that E accompanied the mother on each occasion she travelled to Australia.
Counsel for the mother submitted that it is possible for a person to be habitually resident in more than one place at one time, the inference being that the mother was habitually resident in both South Africa and Australia. The mother’s counsel referred me to the decision of Murphy J in Department of Communities (Child Safety Services) & Rolfston [2010] FamCA 264 and in particular to his Honour’s analysis of the decision of the High Court in LK v Director-General Department of Community Services (2009) FLC 93-937. In that case the High Court said at paragraph 25 that although they thought it was unlikely:
… it is not necessary to exclude the possibility, that a person will be found to be habitually resident in more than one place at the one time. But even if place of habitual residence is necessarily singular, that does not entail that a person must always be so connected with one place that it is to be identified as that person’s place of habitual residence. So, for example, a person may abandon a place as the place of that person’s habitual residence without at once becoming habitually resident in some other place; a person may lead such a nomadic life as not to have a place of habitual residence.
I do not accept the submission that there is any ambiguity about the mother’s habitual residence during the period between September 2011 and November 2013 or that she was habitually resident in both South Africa and Australia, albeit not necessarily at the same time, during this period. In my view the evidence all points to the fact that the mother was habitually resident in South Africa. That includes the mother’s own evidence that:
·she moved to South Africa with her mother when she was 14 years of age and completed her secondary education in South Africa;
·although the mother studied in Australia for a period of six months and gave birth to E in Australia during 2011, she also deposes that after E’s birth she “returned to Johannesburg to live with [the father] and his family”;
·the mother travelled to Australia on what she describes in her affidavit as a “holiday” in December 2011 and again in May/June 2012;
·the mother travelled to Australia in September 2012 in anticipation of A’s birth as she and the father had agreed that they wanted A to have Australian citizenship, but that when the father was unable to travel to Australia for the birth she returned to South Africa where she remained thereafter with both children, living with the father at his mother’s home until her and the children’s departure for Australia in late November 2013;
·at all times prior to her departure for Australia in late November 2013 the mother intended to return to South Africa and travelled on airline tickets with a return date of 15 January 2014;
·in the course of a discussion with the father and the paternal grandmother in approximately October 2013 she told the paternal grandmother that she was not happy in South Africa and that “it was decided that [she] would go on holiday to Australia with the children”;
·the mother does not suggest that at the time she left for Australia she had already formed an intention to live in Australia and to the contrary it is her evidence that she “wanted to return to Australia to see how things went”; and
·although she does not say exactly when this occurred, it is her evidence that it was only once she arrived in Australia that she says she “was much happier and observed how much happier the children were”.
In my view, the father’s evidence in relation to the applications he and the mother made to both the C School and the R School, private schools in Johannesburg, for the children commencing in 2015 and 2016 respectively, when viewed in the context of the other evidence, is also consistent with the mother having had a settled intention to habitually reside in South Africa, notwithstanding her assertion that she was uncertain about her future and only made the applications to cover all bases.
The messages between the father and the mother also support my conclusion that the mother was habitually resident in South Africa at the relevant time, and that she had not formed an intention to habitually reside in Australia prior to her departure.
Even on 11 December 2013, which is when she says the father agreed that she could remain in Australia with the children, the mother deposes she and the father exchanged numerous messages in which “we both discussed our feelings, our relationship, our future and the future of the children.” For example, the mother said to the father prior to, but on the same date as the message which the mother relies upon in support of her case that the father agreed to her remaining in Australia, “[i]t’s nice to have family around all the time but I could never take the kids away from you and at the end of the day your (sic) right that me and u (sic) are a good pair because we agree with each other on a lot of the same things.” In my view, this is not consistent with someone who has, even after her arrival in Australia, a settled intention to reside in Australia. These messages are in my view part of an ongoing discussion as to the parties’ future.
Giving the word habitual its natural meaning, a person in order to become habitually resident in a country must be in that place for an appreciable period. As Lord Brandon of Oakbrook observed in C v S (minor: abduction: illegitimate child);Re J [1990] 2 All ER 961:
... there is a significant difference between a person ceasing to be habitually resident in a country A, and his subsequently becoming habitually resident in country B. A person may cease to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long-term residence in country B instead. Such a person cannot, however, become habitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so.
Although Lord Brandon went on to say that a person may have ceased to be habitually resident in country A before becoming habitually resident in country B, it does not alter my view that the mother was habitually resident in South Africa at the relevant time. I am not satisfied on the balance of probabilities on the evidence before me that to the extent that the mother formed the intention to habitually reside in Australia after she arrived in Australia, that she had formed the necessary settled intention to do so or that there had been sufficient time for her to become habitually resident in Australia by the time she cancelled the return tickets, by 15 January 2014, being her initial return date or any later date that the father may have agreed to not knowing that the mother had already cancelled the return tickets.
In any event, even if the mother had become habitually resident in Australia, it does not follow that the children were also habitually resident in Australia, and it was not open to her to unilaterally change the children’s habitual residence.
In all of the circumstances I am satisfied that the father and the mother and the two children of their relationship were habitually resident in South Africa immediately prior to the mother’s decision to remain in Australia with the children.
RIGHTS OF CUSTODY
The next issue I must determine is whether at the time of the children’s retention in Australia the father in this case had rights of custody, whether he was exercising those rights and whether the retention of the children in Australia was in breach of his rights of custody.
Regulation 4(2) of the Regulations provides that for the purposes of sub-regulation 4(1) rights of custody include “rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child.”
Having found that the children were habitually resident in South Africa the Court must first determine what rights the father in this case has in relation to the children in South Africa having regard to the applicable law of South Africa (McCall and McCall; State Central Authority (Applicant); Attorney-General (Intervener) (1995) FLC 92-551). Whether those rights amount to “rights of custody” within the meaning of regulation 4 is be determined in accordance with Australian law.
It was submitted by counsel for the State Central Authority that although in South Africa because the father and the mother are unmarried the father does not have parental responsibility for the children as of right, he has acquired full parental responsibility and rights with respect to the children pursuant to s 21 of the Children’s Act 38 of 2005 (South Africa) (“the Children’s Act”) and that such parental responsibility pursuant to the Children’s Act constitutes rights of custody pursuant to the Regulations. Section 21 provides as follows:
(1) The biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of section 20, acquires full parental responsibilities and rights in respect of the child-
(a) if at the time of the child's birth he is living with the mother in a permanent life-partnership; or
(b) if he, regardless of whether he has lived or is living with the mother-
(i) consents to be identified or successfully applies in terms of section 26 to be identified as the child's father or pays damages in terms of customary law;
(ii) contributes or has attempted in good faith to contribute to the child's upbringing for a reasonable period; and
(iii) contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.
(2) This section does not affect the duty of a father to contribute towards the maintenance of the child.
(3) (a) If there is a dispute between the biological father referred to in subsection (1) and the biological mother of a child with regard to the fulfilment by that father of the conditions set out in subsection (1)(a) or (b), the matter must be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified person.
(b) Any party to the mediation may have the outcome of the mediation reviewed by a court.
(4) This section applies regardless of whether the child was born before or after the commencement of this Act.
Counsel for the State Central Authority submitted that at the time of the children’s birth the father was living with the mother in a permanent life partnership or that in the alternative he satisfies the criteria in s 21(1)(b) of the Children’s Act. The mother’s case was that she and the father were not living in a permanent life partnership when either of the children was born.
The mother and the father relied upon the affidavits of their respective expert witnesses. Mr B, the mother’s expert witness who is a solicitor of some 22 years’ experience most of which he spent in practice in South Africa, opined that based upon the evidence of the mother, “there is a dispute as to if they were living in “permanent life partnership.” Mr B did not, however, adduce any evidence as to the basis upon which that might be determined in South Africa. Ms W SC, who was briefed to provide an opinion on behalf of the State Central Authority or its South African equivalent, as to the provisions of the Children’s Act, gave advice which was of more assistance to the Court. It was Ms W’s evidence that although the term “permanent life partnership” is not defined in the Children’s Act, it has been considered in a number of cases to which she referred.
The first of those case was Volks N.O. v Robinson 2005 (5) BCLR 446 (CC) in which Ms W said a permanent life partnership was described as being “a commitment to a shared household, financial and other dependence between the parties, the duration of the relationship and the roles played in the relationship by the parties in relation to one another.” Ms W further referred to a similar description in Rippoll-Dausa v Middleton N.O. & Others 2005 (3) SA 141 (C) where she described the court as focussed on “monogamous cohabitation, mutual emotional support and reciprocal financial support.” Finally, Ms W referred to the case of S v J and Another [2011] 2 All SA 299 (SCA) in which the Supreme Court of Appeal in South Africa, considering inter alia the rights acquired by a father pursuant to s 21 of the Children’s Act, referred to that relationship as “a permanent love relationship” .
Although I am satisfied that the parties had been in a relationship prior to the mother going to Australia to study, I am however not satisfied on the evidence before me that the father and mother were living in a permanent life partnership either prior to the mother travelling to Australia, during her stay in Australia, and more importantly at the time of E’s birth. The tenor of the father’s evidence is that they were in a loving relationship and the Facebook messages annexed to his affidavit confirm that is likely to have been the case, however there is no evidence that the parties were living together or had immediate plans to do so. The father was at the time 22 years of age and the mother was 19 years of age.
However, I am satisfied that the parties’ relationship had all the hallmarks of a permanent life partnership once the mother returned to South Africa after E’s birth in Australia. The father and mother lived in a monogamous relationship at the home of the maternal grandmother and notwithstanding that the mother complains about that relationship and about living in South Africa, she travelled to Australia on two occasions, returning to South Africa to live with the father on each occasion. The child A was born during this period and in those circumstances I am satisfied that the father has acquired parental responsibilities and rights for A pursuant to s 21((1)(a) of the Children’s Act.
Although I am not satisfied that the father and mother were living in a permanent life partnership at the time of E’s birth that is not the end of the matter. It was submitted by counsel for the State Central Authority that even if the Court is not satisfied that the father and mother were in a “permanent life partnership” when each of the children were born, that the father has acquired parental responsibility and rights by virtue of the provisions of s 21(1)(b) of the Children’s Act.
Counsel for the State Central Authority submitted that all three necessary criteria are satisfied. The father is named on both children’s birth certificates and there is no dispute that the father has consented to be identified as the father of both children. However, the mother disputes that the father has either contributed or has attempted in good faith to contribute to the children’s upbringing or that he contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the children for the requisite reasonable period.
Whilst the two experts reach different conclusions based upon the their interpretation of the facts, albeit that that is ultimately a matter for this Court to determine, they also differ significantly upon what they each say is required with respect to these provisions.
The most significant point of difference between them is in relation to Mr B’s evidence that as there was no mediation pursuant to s 21(3) of the Children’s Act and no court order, the father has not acquired parental responsibilities or rights. Mr B does not refer to any authority to support this proposition.
In relation to this issue, Ms W opined as follows at paragraphs 27 and 28 of her affidavit:
Section 21(3) provides that in the event of a dispute between the parents as to whether or not the father fulfils criteria in section 21(1) the matter must (not shall) be referred for mediation to a Family Advocate, social worker, social service professional or other qualified person. However, the High Court is the upper guardian of all minor children and the provisions of section 21(3) do not diminish the High Court’s powers as upper guardian. If it is in the interests of the child, either parent or both of them may ask the High Court to make an order without them first having to engage in mediation.
In my own experience applications for declaratory orders in instances where there is a dispute between parents as to whether the father has acquired rights and responsibilities in terms of section 21 are as a matter of course regularly heard by the High Court without mediation having first occurred. I am unaware of any matter in which a High Court has insisted on mediation having first taken place and my own experience confirms this. This, whilst mediation may avoid expensive and protracted litigation it is not peremptory.
Counsel for the State Central Authority also referred me to I v C and Another (11137/2013) [2014] ZAKZDHC 11 (4 April 2014) (“I v C”), an unreported decision of the High Court of South Africa, KwaZulu-Natal Local Division, Durban in which Gabriel AJ concluded that his Honour had jurisdiction to hear the matter notwithstanding that the parties had not been first referred to mediation. The court in this case was asked to interpret s 21 of the Children’s Act following a request by the High Court of Justice Family Division in the United Kingdom for the purposes of Hague Convention proceedings in the United Kingdom for the return of a child to South Africa. Gabriel AJ said at paragraph 7 as follows:
Ms Annandale argued that this is not a dispute about the paternity rights of the unmarried biological father emanating in this country and that section 21(3)(b) finds no application. I agree. This case concerns the resolution of a question posed by the UK High Court which is dealing with proceedings in this initiated there in terms of the Hague Convention. In those proceedings, the UK High Court will determine whether the applicant had rights of custody when S […] was removed, as contemplated in Article 3 of the Hague Convention. A resolution of, inter alia, that matter will determine whether that Court will order the return of S […] to the Republic. I am not required to answer any of those matters in this application.
The provisions governing whether a biological father who does not have parental responsibilities and rights in respect of children pursuant to s 20 of the Children’s Act has acquired full parental responsibility are set out in s 21(1) of the Children’s Act. The requirement that the parties attend mediation is contained in s 21(3) and is relevant for the purposes of a dispute as to whether the biological father has satisfied the requirements of s 21(1) in proceedings in a court of competent jurisdiction in South Africa. I am satisfied that it has no application to the proceedings in this Court and is not relevant to this Court’s determination.
The relevant sections speak for themselves. Section 21(3) provides that:
(a)If there is a dispute between the biological father referred to in sub-section (1) and the biological mother of a child with regard to the fulfilment by that father of the conditions set out in subsection 1(a) or (b), the matter must be referred for mediation to a family advocate, social worker, social services professional or other suitably qualified person.
It is clear from that section that the mediation is intended to assist parties where there is a dispute as to whether the biological father has met the conditions contained in s 21(1) of the Children’s Act and is not in itself determinative of whether he has acquired those rights.
Turning to s 21(1)(b) of the Children’s Act, the question I must determine is whether the father in this case has, for a reasonable period, contributed in good faith to the children’s upbringing and towards expenses in connection with the maintenance of the children.
Mr B opined that “if the … Mother’s evidence is considered, it seems that the requirements of Section 21(1) have not been met and the Requesting Father does not acquire “parental responsibilities and rights” or “rights of custody under South African law”.” Mr B did not refer to any evidence upon which he might have based that conclusion nor any authority which would support that conclusion.
Ms W, on the other hand, concluded that the father met both the requirements of s 21(1)(b) and (c). She said with respect to subsection (1)(b) at paragraphs 19 to 21 of her affidavit as follows:
The terminology in this section is wide and may be open to conflicting interpretations. The term “upbringing” implies an involvement in the child’s life. It, however, makes allowances for the particular circumstances of the father. The father must show that he has tried “in good faith” and for “a reasonable period” to contribute towards the upbringing of the child.
The parties lived together since shortly after the birth of [E]. The [father] has set out in his founding papers (inter alia para 41 ff) the manner in which he participated in the upbringing of the children, most of which is disputed by the [mother], what is common cause is that the [father] loves his children, has been a continuous presence in their lives, has ensured their care with him in a loving household, has together with the [mother] made joint decisions, e.g. regarding their future education and taken steps to enrol them in schools.
On the facts in the present case it is my view that the [father] meets the requirements of section 21(1)(b)(ii) of the Act.
I was also referred by counsel for the State Central Authority to the decision of Gabriel AJ in the matter of I v C, to which I referred to earlier in these reasons. In that case his Honour said at paragraph 35 as follows:
… this section speaks to contributions or good faith contributions to S[..]’s upbringing for a reasonable period. These are elastic concepts and permit a range of considerations, culminating in a value judgement as to whether what was done could be said to be a contribution or a good faith attempt at contributing to the child’s upbringing over a period which, in the circumstances, it is reasonable there is a distinction.
His Honour went on to say at paragraph 39:
The Court in Steadman with reference to the dictionary held that “upbringing” referred to “treatment and instruction received from one’s parents through childhood”. I am of the view that the concept of “upbringing” denotes more. At its minimum contributing towards toward a child’s upbringing encompasses personal effort towards interacting, caring for and being in contact with the child. But the concept could entail more such as a father procuring suitable care or educational aids or other material yet useful comforts for a child to ensure a comfortable and good upbringing.
There is no dispute in this case that after giving birth to E in Australia the mother returned to live with the father and the child in the paternal grandmother’s home in South Africa. Thereafter, apart from what I described as holidays by the mother and on the occasion when she travelled by agreement with the father to Australia for A’s birth, the father and mother lived with E, and after A’s birth, lived with both children in his mother’s home in South Africa. The father was a full-time student whilst the mother was able to devote herself to the care of the children on a full-time basis. Although the mother is critical of the father, I am satisfied that his contributions must be viewed in that context.
The father deposes to the following matters:
·That although it took him a while to deal with the news that he was a father, “after processing the news and initial shock, I accepted that I was now a father and had to do what was best for my little girl. [The mother] and I agreed that she and [E] would return to South Africa immediately and that we would live together as a family, with my mother … in her home.”
·“Accordingly, [the mother] and [E] return to South Africa in about August 2011 and she and the children (sic) moved in with my mother and me and we lived together as a family. The relationship between [the mother] and myself was loving and supportive and we were both proud parents of our beautiful little girl, [E].”
·“My parents supported us financially, and [the mother] had the luxury of being a stay–at-home mother. I am an involved father, but my studies take up a great deal of time. I am young and am committed to completing all my intended studies in order to be able to make a career in the future in my chosen field ...”
·That he participated in the daily upbringing of the children in the following ways, albeit that the list is not exhaustive:
§“I have been involved in all major decisions regarding the minor children’s upbringing”;
§“I love and support both children unconditionally and provide for their emotional and intellectual needs, along with the [mother]”;
§“I have provided, through my parents, for the children’s physical and emotional security. They live in a beautiful home and want for nothing. They feel safe in our home and we have provided them with a stable family environment in which they also had the luxury of having [the mother] be a stay-at-home mother (although [the mother] will have to at some point, as a young and capable person, start working and earning an income)”;
§“I come home from university if I do not have lectures in the afternoon to have lunch with [the mother] and the children”;
§“I spend time with the children in the late afternoon playing with them or sitting with them”;
§“I spend time with the children teaching them about music. I have an electric drum set, a guitar and an electric piano set up in my study and I play the minor children songs or encourage them to learn to play. [E] in particular loves this activity and both children have shown an interest in music”;
§“[The mother] and I agreed that the minor children should grow up being able to speak multiple languages, and apart from English and Afrikaans, should speak Italian and Greek. My mother, who is Greek, speaks to the minor children in Greek with my encouragement and participation. My father, who is Italian, speak Italian to the minor children, with my encouragement and participation”; and
§“I sat with [the mother] when she bathed the minor children. I also often entertained [E] while she was in the bath, as she is a little older already and allowed some extra play time in the bath”;
In response to the mother’s affidavit filed 25 July 2014 in which she was critical of his lack of involvement, the father deposes as follows:
·I deny that I had little to no involvement in [E’s] care, or that my mother or [my sister] spoke to me about my responsibilities in respect of [E] during this time. Later on, after [A’s] birth, they did talk to me about making more time for [the mother] and the minor children;
·I specifically make mention that [E] loved coming to wake me up in the morning. We played a little game issue would hop onto the bed and tickle me and kiss me while I was snoozing or pretending to sleep, waiting for her next little “attack”. [E] would run in and out of my room every 5 or 10 minutes in a playful mood; and
·While I deny that [the mother] “single-handedly” raised the children, the intention of my paragraph was to speak to the long term future and benefits of my studies to us as a family. I cannot easily take time off my studies to be at home while I am young, as this would impact my and therefore our children’s future, in particular, my ability adequately (sic) to cater for their financial needs”.
Based upon the examples of accommodation annexed to the father’s affidavit, the likely cost of that accommodation is between ZAR 12,000 and ZAR 17,000 per month (approximately AUD$1,238 to AUD$1,754 per month based upon the Reserve Bank of Australia exchange rate as at 13 October 2014). Again doing the best I can on the evidence, which is limited to the examples of the rental properties provided by the father, and given that it is the father who has established the range and that that range is not large in real terms, I propose to order that the father provide the mother with sufficient funds to rent a property at the upper end of that range. Most of the rental properties given as examples by the father require a bond or deposit of what appears to be the equivalent of one month’s rent and I propose to add this to the amount to be paid by the father prior to the mother’s departure.
Although counsel for the mother proposed that the father should make provision for the mother and the children for a period of 12 months, the purpose of the orders I propose to make is to facilitate the children’s return to South Africa rather than to make orders governing the arrangements for their care and support on an ongoing basis. However, in circumstances where the father appears to have no capacity to pay child support even if he were ordered to do so, and in light of the father’s own proposal, I am satisfied that, in order to provide the mother and the children with some financial security upon their return to South Africa, the father should be required to make financial provision for the wife and the children for a period of six months from the date of their return to South Africa. Although the father’s proposal was not based upon a lump sum payment, I am satisfied that in order to ensure that the conditions for the return are met the father should be required to make a lump sum payment prior to, and as a condition of, the children’s return to South Africa.
Although the mother proposed that the father should provide for her support for a period of 12 months or until she obtained gainful employment, the difficulty with an order dependent upon the mother obtaining employment is that there is no evidence before me in relation to what the mother would be likely to earn, assuming she did obtain employment, and whether her income would be sufficient to support herself and the children.
On that basis I propose to make orders requiring the father to pay a lump sum to the mother which will allow her to re-establish herself in South Africa for a period of six months irrespective of whether she does or does not obtain gainful employment. The total sum payable by the father prior to the mother’s return to South Africa with the children is ZAR 179,000 (AUD$18,473 based upon the Reserve Bank of Australia exchange rate of 9.6900 ZAR/1 AUD$ as at 13 October 2014). This is made up of ZAR 10,000 per month for six months, rent of ZAR 17,000 for the same period, and the sum of ZAR 17,000 for any bond the mother will likely be required to pay, making a total of ZAR 179,000.
The father deposed that the paternal grandfather will purchase a suitable vehicle for the mother’s use in South Africa. The father annexed three possible motor vehicle options which ranged in value from ZAR 204,900 to ZAR 332,900 (AUD$21,146 and AUD$34,355 based upon the Reserve Bank of Australia exchange rate as at 13 October 2014).
On the basis of the father’s evidence I also propose to require him to provide the mother with a choice of three vehicles within the price range he has nominated, for the mother to then nominate one of the vehicles, and the father to then provide proof to the mother of the purchase of the vehicle of her choice prior to her departure for South Africa with the children. Any failure on the part of the father to subsequently make that vehicle, once purchased, available to the mother would in all of the circumstances be likely to reflect poorly upon the father in light of his evidence to this Court.
Counsel for the mother also submitted that as there is no provision for legal aid in South Africa the father should be required to pay a lump sum of AUD$10,000 to the mother to enable her to pay her costs of the anticipated proceedings in South Africa.
The figure of AUD$10,000 is based upon the estimate provided by Mr B. There is no evidence as to how he calculates this figure and, significantly, I note that it is based upon his evidence that the matter would likely take in excess of two years. I am not satisfied firstly that the proceedings will necessarily take that long or would cost AUD$10,000 as he deposes. I have already referred to the evidence of Ms W that the South African courts may consider it appropriate to allocate the matter an early hearing date.
There is also no evidence before me as to the availability or lack of availability of legal aid in South Africa. It is the mother’s evidence that, although she was initially represented by legal aid in the proceedings she instituted in the Federal Circuit Court, her grant of legal aid was terminated without explanation. In all of the circumstances I do not propose to make the order sought by the mother with respect to the provision of a lump sum to meet her legal costs.
I am satisfied that providing the mother is able to obtain a visa for no less than three months and that the father satisfies the terms of the orders that I propose to make, that the children will not be exposed to a grave risk of harm or placed in an intolerable situation if they to return to South Africa. In those circumstances, and having regard to the objectives of the Convention, I propose to order the children’s return to South Africa. If the mother’s application for a visa is not successful or the father does not meet the conditions I impose, the order for the children’s return will lapse and the application for the children’s return shall be discharged.
I certify that the preceding one hundred and forty-eight (148) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered 14 October 2014.
Associate:
Date: 14 October 2014
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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Procedural Fairness
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Remedies
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Standing
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Costs
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Appeal
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