Verney and Bolger
[2018] FCCA 920
•18 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VERNEY & BOLGER | [2018] FCCA 920 |
| Catchwords: FAMILY LAW – Parenting – where final parenting orders were made by consent on 24 January 2014 – consideration as to whether there were changed circumstances to justify a new hearing – principles in Rice & Asplund (1979) FLC 90-725 discussed – preliminary issue – where best interests of the child is primary consideration – whether change in circumstances is of sufficient significance to justify revisiting the parenting arrangements – application dismissed. |
| Legislation: Family Law Act 1975, s.61DA Evidence Act 1995, s.144 |
| Cases cited: CDJ v VAJ (1998) 197 CLR 172 Rice & Asplund (1979) FLC 90-725 SPS & PLS (2008) FLC 93-363 |
| Applicant: | MS VERNEY |
| Respondent: | MR BOLGER |
| File Number: | PAC 4268 of 2011 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 26 July 2017 |
| Date of Last Submission: | 18 August 2017 |
| Delivered at: | Parramatta |
| Delivered on: | 18 April 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Cantrall |
| Solicitors for the Applicant: | Coleman Greig Lawyers |
| Counsel for the Respondent: | Mr Rosic |
| Solicitors for the Respondent: | Kells The Lawyers |
ORDERS
The Initiating Application filed 20 February 2017 is dismissed.
Remove all outstanding issues from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Verney & Bolger is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4268 of 2011
| MS VERNEY |
Applicant
And
| MR BOLGER |
Respondent
REASONS FOR JUDGMENT
Introduction
On 24 January 2014, with consent of the parties, the Court made final parenting orders with respect to the parties’ two children:
a)[X] born on (omitted) 2007; and
b)[Y] born on (omitted) 2008.
(“Final Orders”)
Pursuant to the Final Orders, the parents have equal shared parental responsibility and the children live week about with each of their parents during the school term and the holidays are shared. At the time of the Final Orders [X] was not yet 7 years old and [Y] had just turned 5.[1]
[1] It was submitted on behalf of the father that the children have been living in an equal time regime since September 2011, when they were 4 and 2 respectively. At the time of this hearing, this had been for a period of approximately 6 years.
The Final Orders also provide, inter alia, for a consultation mechanism in respect of major long-term issues concerning the children and for information sharing in respect of the children’s medical issues, social, school or religious functions and “any other matter relevant to the welfare of the children.”
By way of her Initiating Application filed 20 February 2017 the mother seeks an order for sole parental responsibility for the children and that the children’s time with the father be reduced from equal time to two nights per fortnight.
These are parenting proceedings which are to be determined by the provisions of Part VII of the Family Law Act 1975. The central enquiry is for the Court to determine the outcome that will be best for the children the subject of these proceedings. Given that there are already final orders in place in respect of the children, the Court is firstly concerned with whether it should entertain the application at all. These are the reasons for judgement in respect of that ‘threshold’ issue.
Relevant Legal Principles
In Rice & Asplund the Full Court said:
The principles which, in my view should apply in such cases are that the court should have regard to any earlier order and to the reasons for the material on which the order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore the court would need to be satisfied that…there is some changed circumstance which will justify such a serious step, some new factor which was not disclosed at the previous hearing which would have been material…It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing…
The rule in Rice & Asplund is of long-standing, has been consistently recognised and applied both by the Full Court of the Family Court, the Family Court and this Court, and is intended to apply universally in the sense of applying to every case in which final parenting orders are sought to be discharged or varied subsequently[2]. It is important for one judge not simply to substitute his or her conclusion for another judge, unless there has been a change of circumstance sufficient to justify that course.[3]
[2] Poisat & Poisat [2014] FamCAFC 128 at [8] and [13]
[3] SPS & PLS (2008) FLC 93-363 at [73]
The purpose of the rule is to protect children from exposure and involvement in further unnecessary litigation.[4]
[4] King & Finneran (2001) FLC 93-079 at [44] and [64]
The words of caution pronounced by the High Court in CDJ v VAJ[5] are respectfully adopted:
The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and uncertainly of prolonged repetitive proceedings.
[5] (1998) 197 CLR 172; [1998] HCA 67 at [118], cited by the Full Court of the Family Court in the context of a Rice & Asplund argument in F & C & Child Representative [2004] FamCA 568 at [44]
It has been held that the assessment of whether the asserted change in circumstance is significant is simply part of a composite multi-faceted approach for assessing whether the re-litigation of parenting arrangements is in the best interests of the child.[6]
[6] CDW v LVE [2015] WASCA 247 at [84]
The Full Court in Marsden v Winch[7] held as follows:
… there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
(1) The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2) Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3) If there is such likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
[7] [2009] FamCAFC 152 at [50]
In summary, a court should not lightly entertain an application to discharge, vary, suspend or revive a final parenting judgment. In dealing with such an application, the court must be satisfied that there is some changed circumstance which will justify such a serious step or some new factor arising or some factor which was not disclosed at the previous hearing which would have been material.[8]
[8] Reid & Lynch [2010] FamCAFC 184
Parties’ Submissions
It was submitted on behalf of the mother that the present arrangements are not in the children’s best interest to the extent that a change of the orders is required and the rule in Rice & Asplund should not operate to prevent a fresh examination of the evidence.
The mother asserts that the final orders made by consent on 24 January 2014 are no longer reasonably practicable or in the children’s best interests and asserts that the families circumstances have significantly changed since the making of the consent orders in 2014.
The mother asserts that the child [Y] has exhibited symptoms of anxiety including suicidal ideation, somatic symptoms and inability to sleep and regulate his emotions. In her evidence under cross examination, the mother asserted that these symptoms arose after an incident where [Y] was exposed to an episode of family violence in the paternal grandparent’s home in approximately December 2016. The father submits that this incident does not establish that the children are exposed to any ongoing risk of being exposed to family violence whist in the father’s care.
It was submitted by the mother that the parties are unable to have equal shared parental responsibility because they are unable to effectively communicate and reach agreement about the care and treatment of the children. For example, the parties, prior to the hearing were unable to agree as to any treatment for [Y]’s alleged mental health concerns as raised by the mother. During the course of the hearing the father conceded that [Y] should be treated. Similarly, the mother submits the parties have been unable to agree on [Y]’s orthodontic and optical treatment.
The father however submits that this is not a change to the parent’s co-parenting circumstance and was an issue outlined in the Family Report prepared by Ms R. The Family Report writer identified that the parents limited capacity to communicate and co-operate significantly challenged the viability of an order for equal shared parental responsibility.
The father submits that the mother had in the past made many unilateral decisions concerning the children and that she had misinterpreted what equal shared parental responsibility meant. However, the father says that following the mother’s realisation of what this entailed the parties have been able to reach many agreements in relation to the children.
The mother in cross examination agreed that the parties have been able to reach agreement jointly in respect of matters such as:
a)The general practitioner the children should attend where reasonably practicable and whilst in their respective care;
b)Involving one another in medical appointments and having jointly attended two such appointments; and
c)Agreement with respect to schools that the children should attend, including the children’s High Schools.
It is submitted by the mother that the fact that the parties were unable to agree on any treatment for [Y] with respect to mental health issues (prior to the hearing), orthodontic and optical treatment mean that the Court can have no confidence that the needs of the children will be met in the making of long term decisions about their care, welfare and development.
The communication between the parties is less than ideal. With the evidence of the father being that the parties have been communicating through their solicitors since January 2015, in circumstances where there were no proceedings on foot and final orders having been made the year before. The mother agreed that this had been the situation and added that they do not talk in person or on the phone but only via text message, email or through their solicitors.
The mother submits that the Court would highly likely vary the orders made by consent if the matter was to proceed to a new hearing.
The mother submits that the evidence provides the Court with the opportunity to find that the current orders are detrimental to the children, in particular [Y]. The mother says that allowing the parties to litigate their disputes would be in many ways a relief to the parents and the children, as it would provide a path forward from the stalemates and escalations of conflict that have occurred under the current orders.
Further, the mother says that should the Court permit the parties to re-litigate their cases the Court will be assisted by the preparation of a Single Expert report.
The father submits that even if the Court permitted the parties to re-litigate the proceedings there is insufficient evidence to ground the rebuttal of the presumption of equal shared parental responsibility pursuant to section 61DA of the Family Law Act1975.
Determination of Rice & Asplund Issue
The parties commenced living together in mid-2006 and were married on (omitted) 2008. The parties separated on 11 September 2010 and were granted a divorce on 11 January 2012.
The mother filed an Initiating Application seeking final parenting orders on 17 October 2012. The father filed a Response seeking final parenting orders 19 October 2012. As noted at the commencement of these Reasons, Final Orders were made by this Court on 24 January 2014.
The mother[9] indicated to the Court that there were two issues which were troubling her and which formed the basis of her current Initiating Application. These two issues were said to be:
a)Lack of communication between the parties; and
b)[Y]’s anxiety.
[9] In answer to questions from the Bench
It was the mother’s case that the reason she was seeking an order for sole parental responsibility was because the communication between the parties was so bad that they could not co-parent. Secondly, a change in the children’s living arrangements was sought by her because of [Y]’s anxiety, which according to the mother arose after incident in December 2016.
Communication between the parties
It was submitted on behalf of the mother that:
any reasoning that seeks to protect the children from disputes between their parents through litigation is not open to the court, as the evidence of both parties highlights the conflict and disputes that characterise this parental relationship, even in the absence of litigation.
The evidence in the proceedings however, includes a number of the mother’s conclusions about the father’s willingness to co-operate and co-parent and letters from the mother’s solicitor, the tone of which at times does not invite co-operation between the parties.
a)An example is the mother’s evidence at paragraph 33 of her Affidavit filed 20 February 2017[10] is as follows:
Despite the agreement for Mr Bolger and I to co-parent on issues concerning the children, recently when issues arise that require Mr Bolger and I to come to an agreement, he will disagree, insist on making minor changes, or ignore my requests entirely which meant the issues remain unresolved and the children miss out on some activity or health treatment…
b)On 26 November 2016 the mother took [Y] to the dentist to “have his cross bite reviewed”. The mother advised the father via a text message what the dentist’s opinion was as to orthodontic treatment for [Y]. She then made an appointment with the orthodontist in January 2017. As is evident from the mother’s text message, she did not consult the father prior to making the orthodontic appointment, consult him about the proposed date, tell him of the date of the appointment or indeed invite him to attend.
c)What followed next was an email from the mother on 24 January 2017, notifying the father of the outcome of the orthodontic appointment, including the treatment recommended and the cost. The mother annexed to that affidavit the quote, treatment plan letter and direct debit request form. She also advised the father that he was “welcome to speak to them directly about making regular payments if you cannot afford to pay the $900 upfront” with the total cost of treatment being $1800. She also “asked” the father to come to the appointment on the day the plate needs to be fitted so that the orthodontist could show both parents how to turn the key in the plate correctly. Lastly, the email stated “Can you please advise not later than Friday the 27th of January if you are ok with this treatment to proceed, so I can book [Y]’s appointment with the Orthodontist”.
d)In a letter dated 1 February 2017 from the mother’s solicitor to the father directly[11], the solicitor stated:
[10] Which was the affidavit filed in support of the orders the mother sought in the Initiating Application filed on the same date
[11] Being an example of relevant correspondence as noted in paragraph 40 of the reasons
I am instructed that my client has sought your agreement to urgent orthodontic treatment
In respect of the specific complaint regarding orthodontic treatment for [Y]:
a)there is no evidence in the mother’s case that such treatment was urgent as suggested by the mother in her email of 24 January 2017 and in the correspondence sent on her behalf dated 1 February 2017;
b)there was no consultation with the father about the proposed treatment. The mother simply advised the father the proposed treatment and cost, with an indication that he should pay half the cost. The token “please advise no later than…” was not consultation, particularly when looked at in the context of what occurred; it was a demand that he agree to her proposal[12];
c)the father replied to the mother on 27 January 2017 seeking clarification of the proposal and indicating his view that “A discussion is to take place between the two of us in relation to whom shall be treating the children before any such action can take place…”
d)proceedings were commenced some three weeks after the date of the mother’s solicitor’s letter; and
e)the issue was ultimately resolved between the parents without the need for any Court order.
[12] The court notes that the mother’s email of 24 Jan 2017 advised that she had ‘not yet many any appointments for treatment to commence’
In respect of the parties’ communication difficulties, the mother conceded in cross-examination that her attitude post the Final Orders and until approximately May 2017, was that she had misunderstood her obligations in respect of consultation regarding long-term issues for the children. In a letter dated 2 May 2017 to the mother’s solicitors, the solicitors for the father wrote as follows:
It would appear on your client’s own evidence and confirmed by Annexure “E” of our client’s affidavit filed on 26 April 2017 (email from your client dated 18 March 2016) that your client is labouring under a misapprehension that she is not required to inform [the father]… of medical appointments with specialists [for the children] until after they have occurred.
In cross-examination, the mother conceded that after she had received this letter, she sought legal advice. The mother also conceded in cross-examination that the letter from the father’s solicitors contained an accurate interpretation of the orders.
It was after this letter was received that the mother started communicating differently with the father. The mother further conceded in cross-examination that it was after receiving the letter that the parties started working together in respect of the children’s long-term issues. The mother’s evidence is that both her and the father have since approximately May 2017 made a genuine attempt to communicate, although she said this was not because of the letter.
The mother’s evidence is that:
a)The parties have agreed on schools for the children;
b)The parties have agreed on orthodontic treatment for [Y]; and
c)The parties have agreed that [Y] needs ongoing treatment for his anxiety.
The mother says what is outstanding is agreement about optometric treatment for [Y], extra-curricular activities and who is to treat [Y]’s anxiety. When pressed in cross-examination, the mother conceded that if the parties continued communicating in the manner they had adopted since about May 2017 there was a positive outlook, yet she insisted on pressing for the relief sought in her Initiating Application filed on 22 February 2017.
The notations to the Final Orders read as follows:
A.These Orders were made in Chambers following the receipt of proposed terms which were sent to Chambers by the parties’ legal representatives.
B.The Court is in receipt of correspondence from:
…
b. Ms Sallyanne Troung, ICL, dated 22 January 2014, which indicated that the ICL was not in a position to consent to the proposed orders, and the ICL had not signed the orders on the basis that the ICL could not say that the orders were in the best interests of the Children due to :
i. parental conflict;
ii. the parties’ capacity to communicate and cooperate; and
iii. the distance between the parties’ households, however, the ICL indicated that she did not oppose the making of the orders, noting that the orders appeared to follow the recommendation of the Family Report writer…
It is apparent from the notations to the Final Orders that the Court was alive to the issue of the parties’ then difficulties in communication. This is not a new matter or a changed circumstance. Indeed, what is now a changed circumstance is the mother’s new found understanding of her obligations pursuant to the Final Orders.
Co-parenting does not mean that one parent is to agree to the demands of the other parent. The Act provides that an order for shared parental responsibility requires the parents to consult with each other in relation to the decision to be made about that issue and to make a genuine effort to come to a joint decision about that issue.[13] The evidence in the proceeding would not lead to a finding that the mother has fulfilled her obligations in this regard. The Court finds that it is the mother’s attitude to co-parenting and her insistence on the father agreeing with her suggestions that has caused a significant part of the conflict between the parents. As such the mother cannot rely on her own conduct as a basis for an order of sole parental responsibility or to make the submission that there is conflict between the parties.
[13] S65DAC(3)
[Y]’s anxiety
An incident occurred in December 2016 when the paternal grandfather and uncle were wrestling with [Y] and the father heard [Y] asking them to stop and he then told them to stop. This annoyed the paternal grandfather and uncle who argued with the father and the uncle grabbed the father’s shirt during the argument. There is no suggestion in the mother’s case that the father acted inappropriately, and the undisputed evidence is that he only acted to protect [Y]. What is problematic is that the father told [Y] not to say anything to his mother about the incident. On one view of the parties’ relationship such behaviour by the father is understandable although certainly not excusable. The father should never have said this to [Y].
Since the December 2016 incident the paternal grandfather has apologised and the father rarely sees his brother.
The incident, the Court finds, does not ground a finding that the children are exposed to any ongoing risk of being exposed to family violence whilst in the care of the father.
The parties both accept that [Y] is a sensitive boy with ongoing anxiety issues which require appropriate treatment. There is no expert evidence however, which provides any opinion as to the cause of [Y]’s anxiety and indeed there is no expert evidence in respect of any causal nexus as alleged by the mother between the incident and [Y]’s condition.
At the hearing, the mother gave evidence that:
a)The reason she sought to reduce the children’s time with the father was on advice which had been provided to her by a psychologist;
b)She didn’t want to reduce the children’s time with the father yet she still sought the order “on expert advice”; and
c)She did not see the need for custody arrangements to change.
Albeit the mother gave evidence as noted, when pressed in cross-examination she conceded that there was no recommendation by [Y]’s treating psychologist[14] to change the children’s living arrangements and that she had filed her Initiating Application before she had received any advice from that psychologist.
[14] Ms S whose clinical notes were an exhibit in the proceedings
The mother did not want the father to attend the first psychologist’s appointment, which occurred on or about 24 February 2017.
The mother however did herself attend the first appointment [Y] had with the psychologist and that she told the psychologist in [Y]’s presence her opinion as to why [Y] was suffering from anxiety. At some stage the mother said that the psychologist had offered an opinion to her that continuing with the week about living arrangement was not in [Y]’s best interest. The psychologist did not agree to provide a report for the purposes of the proceedings.
The mother conceded that if the parties communicate in the manner they have been since approximately at least May 2017, then it was more than achievable for the parties to reach agreement about any ongoing or future treatment for [Y]. Importantly, the mother also conceded that there was no need to change the orders.[15]
[15] Mother’s evidence on 26 July 2017
It is difficult to understand how in light of the mother’s concession that there was no need to change the orders, the change in orders was pressed.
In General
It is submitted on behalf of the mother that:
“allowing the parties to litigate their disputes would be in many ways a relief to the parents and the children, as it would provide a path forward from the stalemates and escalations of conflict that have occurred under the current Orders. This change wold not be insubstantial and on the mother’s case would outweigh any potential detriment to the children caused by the litigation itself.”
In circumstances where the father is of the view that there should be no further litigation between the parents, the submission is misconceived. The Family Law Act itself promotes a pathway for settlement of disputes that is not litigious[16]. There is no evidence that allowing the parties to litigate their dispute would be a relief to the parents and the children.
[16] E.g. s12A(b)(c), s13A(1)(b); s60B(2)(c) and (d); s60I(1);
Judicial Notice
Submissions were made on behalf of the mother that the Court ought to take ‘judicial notice’ pursuant to s144 Evidence Act 1995 (Cth), “that as a matter of common knowledge, a post separation parenting course would focus on communication with the other parent”. Section 144 reads:
(1)Proof is not required about knowledge that is not reasonably open to question and is:
(a)Common knowledge in the locality in which the proceeding is being held or generally; or
(b)Capable of verification by reference to a document the authority of which cannot reasonably be questioned.
There is a fundamental requirement that a court is only to take into account “knowledge that is not reasonably open to question”. Further, the common knowledge with the section speaks of is either “in the locality” or capable of verification. Furthermore there are specific procedural requirements contained within s.144(4). To suggest “that as a matter of common knowledge, a post separation parenting course would focus on communication with the other parent” is to misunderstand the specific provisions of the Evidence Act and the common law principles of judicial notice.
As the Full Court in McGregor & McGregor:[17]
[17] [2012] FamCAFC 69 at [59]
[59] Natural justice requires that anything relied upon by court in reaching its decision be made known to the parties to the proceedings prior to the making of the decision, so that parties may oppose reliance upon it, produce evidence in relation to it and/or make submissions about it. Reliance upon material which does not emerge in that manner amounts to appealable error.
…
[64] In our view, s 144 of the Evidence Act has no relevance to the matters raised in the appeal, however we refer to it because it was raised in submissions for the appellant in a way that reflects what we observe to be a common misapplication of the section.
…
[67]It is important to note from the outset that the information to which the section refers is of a kind not reasonably open to question and is capable of verification from authoritative sources. Examples abound of the type of information to which this section, and before it the common law, included as “judicial knowledge” or information shared between the judge and the rest of the community.
[68] The requirements of s.144(1)(a) limit the potential operation of the section and may only be able to be determined after evidence of “common knowledge” generally, or in “the locality” is received. In practice there would be few issues in respect of which reference to extrinsic materials would not be “reasonably open to question”. This we think would be particularly so in relation to social science issues in parenting proceedings.
It is difficult to understand how the content of an unspecified “post separation course” without any recourse to evidence of common knowledge generally or in the locality, or indeed without any recourse to evidence of a relevant document, could be said to be the subject of s144(1). Furthermore, no submission was made on behalf of the mother as to how the procedural requirements contained within s144(4) have been met. As such, the submissions in respect of judicial notice are rejected in their entirety.
Conclusion
Although the Final Orders were made by consent, the chronology of proceedings evident from the Court file shows that the orders were not entered into at the first available opportunity, but rather after several steps were taken in the proceedings, including importantly a Family Report. Both parties were ably represented during the first proceedings.
The Court finds that although the parties’ position in respect of the Final Orders was a compromise, it must have been a compromise which both parties considered was ultimately in the children’s best interest, particularly noting that the Independent Children’s Lawyer position at the time of the parties’ consent. Such compromise must have included the consideration of the effect of ongoing litigation between the parties on the children.
The likelihood of the orders being varied in a significant way, as a result of a new hearing is in the Court’s assessment relatively minor. The mother would have to convince the Court that the presumption of equal shared parental responsibility has been rebutted. In the evidence filed to date and for reasons explained earlier in these Reasons, this is not likely to be a submission that is accepted.
In respect of the children’s living arrangements, the mother’s evidence is on the one hand that she does not want to vary the orders but on the other hand that she has sought a variation because of some advice she received.[18] Even if there was a likelihood of change, the changes might only have been of a minor nature. The disruption to the children and the detriment which would be caused to them by the litigation itself would be far greater than any benefit of a change in orders.[19] This includes the proposed preparation of an expert’s report, an order sought by the mother. In one sense this is purely a fishing exercise – let’s cast the net and see what we can get. The preparation of an expert’s report would result in a significant involvement of the children in the process. Most, it not all of the mother’s evidence concerns [Y]. He is not the only child who would be affected. There is also [X], her interests too have to be considered.
[18] This is not made out on the evidence
[19] Which would no doubt be the subject of hotly contested and potentially competing live with applications
In weighing up the benefits to the children of allowing the matter to be contested in a fresh hearing against the detriment of them being again involved in the stresses of litigation, the Court finds that on balance the best interests of the children are served by the mother’s application being dismissed. This is particularly so where [Y] already suffers from anxiety and the mother’s own evidence about her motivations for the orders she seeks.
The interests of the children in not being the subject of further litigation is more powerfully in their welfare than to allow the application to continue. As such, the mother’s Initiating Application is dismissed.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 18 April 2018
Key Legal Topics
Areas of Law
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Civil Procedure
Legal Concepts
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Abuse of Process
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Costs
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Procedural Fairness
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Standing
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