RUGGLES and JENKINS

[2018] FCWA 173

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: RUGGLES and JENKINS [2018] FCWA 173

CORAM: DUNCANSON J

HEARD: 24 APRIL 2018

DELIVERED : 4 SEPTEMBER 2018

FILE NO/S: PTW 7067 of 2011

BETWEEN: MS RUGGLES

Applicant

AND

MR JENKINS

Respondent

Catchwords:

CONTRAVENTION - Parenting order

Legislation:

Family Law Act 1975 (Cth) s 70NAC, s 70NAE, s 70NAF

Category: Reportable

Representation:

Counsel:

Applicant	:	Mr R Bannerman
Respondent	:	Ms J Johnson

Solicitors:

Applicant	:	Bannerman Solicitors
Respondent	:	Kim Wilson & Co

Case(s) referred to in decision(s):

Nil

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1The application for determination is that of the mother, [Ms Ruggles] filed 28 July 2017 in which she alleges the father, [Mr Jenkins] contravened parenting orders made by consent on 16 May 2017.

2The orders concern the children [Child A] born [in] 2006 and [Child B] born [in] 2008.

THE APPLICATION

3The mother alleges five contraventions of paragraph 10 of the said orders. Paragraph 10 provides:

The parties do all things necessary to continue, facilitate and encourage [Child A's] attendance and participation in the [online treatment program], subject to the Father being at liberty to cease that program after the completion of the third three monthly instalment of the current program.

4The mother alleges the father contravened the order on five occasions in each of the following weeks:

26 May to 2 June 2017;

9 June to 16 June 2017;

23 June to 30 June 2017;

7 July to 14 July 2017; and

21 July to 28 July 2017.

5The mother also alleges the father contravened paragraph 17 of the said orders. For reasons given at the hearing I found the father had no case to answer in that respect.

BACKGROUND

6Child A has a [neurological condition]. His participation in the online treatment program is to assist his processing capacity. In these reasons I refer to it as the online treatment program because it is convenient to do so and I note that both parties have referred to it as such in their correspondence with each other.

7At [50] to [52] below I deal with the issue raised by the father in relation to the title of the program.

8The mother deposes Child A is required to participate in and undertake assignments set for him by the online treatment program on the computer five out of seven days each week for approximately 30 minutes per session when he is in the care of each party.

9Child A lives with his parents on a week about basis.

THE LAW

10In terms of s 70NAC of the Family Law Act 1975 (Cth) ("the Act") a person is taken to have contravened an order under the Act affecting children if, and only if:

(a)where the person is bound by the order—he or she has:

(i) intentionally failed to comply with the order; or

(ii) made no reasonable attempt to comply with the order; or

(b)otherwise—he or she has:

(i) intentionally prevented compliance with the order by a person who is bound by it; or

(ii) aided or abetted a contravention of the order by a person who is bound by it.

11The onus of establishing the contravention rests upon the applicant and pursuant to s 70NAF(1) of the Act, the standard of proof to be applied is that on the balance of probabilities.

12A person is taken not to have contravened an order if that person has a reasonable excuse for doing so. The circumstances in which a person is taken to have a reasonable excuse include those set out in s 70NAE of the Act.

13Section 70NAE(2) provides:

A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:

(a)the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and

(b)the court is satisfied that the respondent ought to be excused in respect of the contravention.

14The onus of establishing that there was a reasonable excuse for the contravention rests with the respondent and pursuant to s 70NAF(2) the standard of proof is that on the balance of probabilities.

THE EVIDENCE

The mother

15The mother deposes that at the time of the making of orders Child A was in the process of the second of the three three-monthly instalments of the online learning program and while in the father's care he ought to have participated in it on the dates referred to at [4] above.

16It is not in dispute that Child A did not complete any session while in the father's care.

17In evidence the mother said Child A knows his own login details for the online learning program and wants to take part in it, but is not allowed to do so at the father's house. She said he is quite happy to participate in the online learning program when in her care.

18In cross-examination, the mother was shown a letter from [the providers of the program] to the Family Court of Western Australia dated 12 April 2018, which became Exhibit 10. The letter refers to five date periods during which time Child A participated in the online learning program. The mother clarified that because Child A was not undertaking the online learning program at the father's home it had to be extended and took twice as long. It is for this reason, she said, that five date periods are indicated and not three.

The father

19The father said he was not clear where Child A was in terms of the instalments of the online learning program. He said Child A had access to the internet and to a computer, but did not ask to do the online learning program at his home. He said he told Child A that he had some online learning to do and Child A said he did not feel like it. The father was not aware of the login detail and did not ask Child A or the mother for it. The father vaguely remembered receiving an email from the mother dated 25 May 2017 in which she said Child A was in the "2nd lot of 3months [sic]", that is, the second instalment of the program.

20The father said he contacted the providers of the program on 27 June 2017 and was told the program had expired.

21On 25 July 2017 the father emailed the mother as follows:

[Online learning program], I choose to cease the program, it has had no benefits, clause 10 Medical matters in the orders.

22The father was aware at the start of December 2016 that the online learning program had not commenced, and in cross‑examination he accepted that even if Child A completed three instalments of three months each, the earliest completion date would be the end of August 2017.

23The father agreed with counsel for the mother that he was aware that Child A was in the middle of the second program at the time of signing orders. In putting this proposition to the father, counsel for the mother inadvertently referred to the date of the orders as May 2016, but it is clear he meant the 16 May 2017 consent orders being the relevant orders. There is no ambiguity about the father's concession in this respect.

24The father said he did not recognise an email dated 26 June 2017 which the mother received from the providers of the program regarding Child A's completion of sessions. The email stated Child A was then at week nine of his three month subscription. The mother forwarded the email to the father on 27 June 2017, but the father said he did not receive it. Coincidentally, that was the same day that the father said he phoned the providers of the program and was told the program had expired.

25Child A did not access the program while in the father's care between the date of orders on 16 May 2017 and the date the father said he called the providers of the program on 27 June 2017. In evidence the father said he told Child A he was welcome to login if he wanted, but he did not say he needed to do it. The father did not inquire if Child A had logged in and did not believe that Child A had ever accessed the program while in his care. The father said the mother had never given him information about the program since the orders were made.

26The father did not recall an email from the mother dated 28 October 2016 regarding the program. He did not download the App. He did not contact the providers of the program to make inquiries about the login. He did not inquire of Child A if the headphones he had were noise cancelling.

27In evidence the father said he was happy if Child A wanted to do the program, but he would not force him. He said once he believed the program had finished he stopped encouraging it.

28On 29 June 2017 the mother's solicitors wrote to the father's solicitors regarding the online learning program pointing out that Child A had not undertaken any sessions while in the father's care. The letter also referred to makeup sessions and the requirement to comply with orders.

29The father did not tell the mother about the phone call he said he made to the providers of the program on 27 June 2017 either at the time or in response to her solicitor's letter dated 29 June 2017.

Ms C

30The evidence of [Ms C], Managing Director of the provider of the program, was that the licence to undertake the program operates "just like a gym membership". That is, the program may be used as many or as few times as the user likes in the three month periods purchased. Those periods may be paused during periods of inactivity where there is a real need for it, although this is not typical as licencing is granted on a time period of three months, and is charged on a month‑by-month basis. It is not necessary for the user to undertake their lessons if a pause has been granted.

31During the course of cross-examination of Ms C was questioned as to the contents of Exhibit 10, which states relevantly as follows:

...

Please find enclosed daily participation reports for all of [Child A's] [program] participation. These reports show each day he trained, which exercises he was assigned to and those that he completed. They also show the time of day he started each exercise. Please note that the dates are in American format (MM/DD/YY).

•[Child A] [Unit 1A] Daily Summary – 9th Dec 2016 – 31st Jan 2017

•[Child A] [Unit 1B] Daily Summary – 31^st Jan 2017 – 15^th March 2017

•[Child A] [Unit 2B] Daily Summary – 22 March 2017 to 2 April 2017

•[Child A] [Unit 2A] Daily Summary – 18 May 2017 to 21 June 2017

•[Child A] [Unit 1A] Daily Summary 2017 – 31^st Sept 2017 [13 Sept 2017 as amended] to 28^th March 2018.

…

32Ms C was asked whether the periods of time where no dates are stated indicate that Child A was not registered, did not have a subscription or was taking a break. She said Child A was not training during that time.

33During the course of Ms C's evidence it became apparent that Exhibit 10 was inconsistent with the report of Child A's actual participation in the Unit 2A program contained in the Usage Summary, which became Exhibit 9. For example, Exhibit 10 suggests Child A participated in the Unit 2A program from 18 May 2017 to 21 June 2017 and does not show any subsequent activity until he commenced the Unit 1A program on 13 September 2017. In contrast, Exhibit 9 indicates that Child A still had access to and in fact did access the Unit 2A program after 21 June 2017, having completed that program on 31 August 2017. Ms C acknowledged in re‑examination that the information she provided in Exhibit 10 was incorrect and Exhibit 9 was accurate; that is, the actual reports indicate he trained for much longer than as indicated in Exhibit 10.

34Ms C could not on the basis of Exhibit 10 and without consulting her database, say with clarity what the position was regarding Child A's licence at the time of orders. He had been training on a blended protocol, that is, training some days in the Unit 2 program and some days in the Unit 1 program, and had been provided a number of extensions.

35Regarding Child A's placement in the program at the time of orders, Ms C confirmed that it was "in his subscription period" and said it probably would have formed "the middle of batch 2", but it looked like an extension had been provided.

36As to the inactivity between 2 April and 18 May 2017, Ms C said in cross-examination that it looked as though "he just hasn't accessed the program or any of the programs for that period of time", and she agreed with the statement put to her by counsel for the father that this does not necessarily mean Child A did not have a licence to access the program, only that he did not in fact do so. In other words, it was a period of time in which Child A was "taking a break". Ms C said it looked to be the case that a pause had been provided during this period, and that had been added to the end of Child A's training block.

37Ms C clarified that Child A commenced the second instalment when he started the Unit 2B program on 22 March 2017. During this period the program would have been open to Child A to use for three months, theoretically until 21 June 2017. However, Ms C explained it was decided the Unit 2B program was too difficult for Child A, and he went down to the Unit 2A program, commencing 18 May 2017. The second instalment therefore lasted until 31 August 2017 when Child A completed the Unit 2A program, as illustrated by Exhibit 9, and this is because an extension had been provided with the time missed added to the end of the initial three months.

38In cross‑examination by counsel for the father, Ms C was questioned as to the telephone call the father says he made to the providers of the program on 27 June 2017. She confirmed she understood he had contacted her colleague. She was asked whether the husband's evidence that someone at the providers of the program told him there was no current licence for Child A was supported, given the records and Exhibit 10. She answered that she would have expected her colleague would have looked that up and got that correct. As stated at [33] above, however, in re‑examination Ms C subsequently acknowledged that the information provided in Exhibit 10 was incorrect.

SUBMISSIONS AND FINDINGS

39The father submits the mother did not share information with him that would have assisted him to support Child A in the online treatment program. He submits it is notable from the correspondence that at no point did the mother explain the login or treatment process to him, yet she was the client of the providers of the program.

40The mother submits the father had full access and knowledge available to him equal to her own, to obtain any information or any guidance to access the online treatment program and what was required to facilitate Child A's completion of it at all times.

41I do not accept the father was not provided with information about the online treatment program by the mother that would have assisted him to support Child A in the program. The mother provided information in email correspondence dated October, November and December 2016. She also provided information by email on 25 May 2017. Paragraph 10 of the said orders placed an obligation on the father with respect to the online learning program and yet he made no attempt prior to 27 June 2017 to obtain information by contacting the providers of the program, nor did he download the App. At no point did he ask the mother to explain anything about the program that he did know or understand. Nothing prevented him from obtaining any information he needed and there is no indication that he tried unsuccessfully to do so.

42The father submits no licence to undertake the program was held by the mother at the time of the said orders until the mother purchased a new licence on 18 May 2018, and consequently he cannot be bound to "continue" an activity that on the evidence was not being carried out at the date of the orders, namely 16 May 2017. He submits this is demonstrated by Exhibit 10 which he says shows enrolment until 2 April 2017 and from 18 May 2017.

43The mother submits that Ms C's evidence indicates that the program was still up and running and available to Child A to complete at all material times alleged in the contravention application. The mother's position is that she paid for Child A to have a subscription at all times and at no point did the father contact the mother or the provider of the program to inquire about Child A's ability to access the program.

44I do not accept the father's submission in this respect. He knew the program could not have been completed until August 2017 at the earliest. He was also aware from the mother that Child A was in the middle of the second instalment of the online treatment program at the time the said orders were made.

45There were periods when Child A did not access the online treatment program and it was paused. However there was no suggestion Child A could not access the online treatment program, and it was available to him for the periods referred to in the application. Ms C explained the difficulties Child A encountered with the Unit 2B program at the commencement of the second instalment of the online treatment program. It is more probable than not that the period of inactivity between 2 April 2017 and 18 May 2017 was not a discontinuation of the program, but a temporary pause to enable Child A to transition to a more suitable [unit]. Furthermore, as stated at [23] above the father was aware that Child A was in the middle of the second program at the time of signing the orders.

46The father says with effect from 27 June 2017 after calling the providers of the program he understood the program to have expired or discontinued. Ms C's evidence was that he is likely to have received that information. The father does not explain why Child A did not access the program while in his care between the date of orders and 27 June 2017.

47On 29 June 2017, two days after the phone call the father said he made to the providers of the program, he was informed by the mother's solicitors the program was ongoing and Child A ought to have been participating in it.

48Therefore, between 27 June and 29 June 2017 the father had reason to believe there was no licence and that he consequently did not require to continue, facilitate and encourage Child A's participation in the program.

49Any issue concerning a licence was not an impediment to Child A's ability to access the online treatment program. He simply did not do so when in the father's care.

50In relation to what the father was bound to do by the order, the father submits the first problem for the mother lies in the identification of the online treatment program in the orders. The orders refer to the "[online treatment program]" and not "[a slightly different program title]" which is the program's correct title according to the provider’s invoices.

51In this respect, the mother submits that to suggest that there is a problem with the identification of the program in the orders is nonsensical. She submits at the same time that the father claims he has encouraged Child A's participation, which she asserts cannot be the case if he did not know what the identity of the program was. This in itself, she submits demonstrates that the father has sought to defend these charges "by a mix and match of excuses rather than defences". Rather, the mother submits the father is and always was fully aware of the program that is referred to in the orders, which he is required to facilitate and encourage Child A to complete.

52I do not accept the father's submission with respect to the identification of the program. Had there been more than one online treatment program involving Child A, the misnomer may have been problematic and possibly even fatal to the mother's case. There was however only one program and therefore no confusion could have arisen. Both parties refer to Child A's participation in the online treatment program in their email correspondence and there was no suggestion of any doubt on the part of the father as to the program in which Child A was participating.

53The father submits the second problem is the specific requirement of the parties to "… 'continue, encourage and facilitate' engagement in the program by [Child A]" (original emphasis). The father refers to steps he took by making a computer with internet connection available to Child A, inquiring of Child A as to his progress, and inquiring of the providers of the program as to the status of the program in late June 2017. His position is that these steps satisfy the requirements of the order. The father further submits that the Court ought not to impute other obligations on him outside the specific terms of the orders.

54The mother's position is that notwithstanding the father's evidence as to steps taken by him, he had not obtained appropriate headphones for Child A to undertake any sessions of the online treatment program in his care, and he merely informed Child A that there is a computer available for him to complete the online treatment program if he wished to do so. The mother's position is that the father failed to encourage and facilitate Child A's participation in and the completion of the online treatment program. She says his statements to Child A regarding the availability of the computer should he wish to use it not only failed to encourage Child A to complete the program, but positively discouraged him from doing so. The mother submits that even if Child A wanted to complete the program at the father's home, it would have been impossible in circumstances where arrangements had not been put in place to enable him to do so by proving the required headphones and downloading the App.

55As to the steps taken by the father, he said Child A had never done the online treatment program in his home and that was Child A's choice.

56In cross-examination the father was asked what he understood by the order. He responded:

To allow [Child A] to log in, have access to the internet that he always has had access to, and, if he needs access, he will ask me and I will turn on the internet for him.

57The father said Child A did not ask to do the program, but he had access to the computer.

58The father did not find out about the login and said he believed Child A logs in himself.

59The father was asked how many times Child A told him he had logged in, but he did not recall any.

60The father was asked how many times he told Child A he wanted him to do the program and the father replied that he said to Child A:

[Child A] how are you going with your [online treatment program]? The computer is available for you. You can login if you want [Child A].

61The father submits in the event the Court finds he has failed to do something he was bound to do by the orders, he had a reasonable excuse for doing so. The father submits that excuse arises from the mother's failure to provide him with the login and other details to ensure Child A's completion of the program in his care and the steps he says he took to comply with the order. The father submits his reasonable excuse also arises from the mother's failure to provide him with clear advice as to the stage of the program, and the "confused manner" in which evidence in this regard from the mother and Ms C emerged at the hearing.

62The mother's submits the father has no reasonable excuse for contravening the order. She says at no time did the father request the login details, which in any event were not necessary given that Child A knew the details. She says Child A was able to login if the father had provided correct headphones and the App. The mother submits the father's own evidence demonstrates a complete disregard for the orders, which the father contravened. The mother submits if the father was uncertain as to what was required, he ought to have made inquiries and requested further information when correspondence was forwarded to his solicitors by those of the mother, advising that the program was not completed by Child A while in his care. He did not do so.

63It is clear the father was philosophically opposed to Child A's participation in the online treatment program. In cross-examination the following exchange took place.

And that’s because you ethically don’t think that this is a program your son should be doing; correct?‑‑‑It will not improve his [neurological condition], so I didn’t believe in it, no. That’s correct.

64Nevertheless the father consented to an order in terms of which he was obliged to continue, facilitate and encourage Child A's attendance and participation in the online treatment program.

65As to the alleged contraventions, the father told Child A he could log on if he wanted to and he was welcome to do so. He did not see Child A do the program and did not ask him if he had done so. He did not provide correct headphones or download the App. I find the steps taken by him were not sufficient to satisfy the requirements of the order.

66Compliance with the orders required the father to do more than he says he did. It was not sufficient simply to allow Child A to do what he wanted when he wanted and to ignore the fact that Child A had not done the online learning program at his home.

67I find the mother has proved on the balance of probabilities that the father did not comply with the order, nor did he make any reasonable attempt to do so on the occasions referred to at [4] above.

68With respect to the father's submission as to reasonable excuse, I refer to my above findings and find that no such excuse is established, with the exception of the three days from 27 June to 29 June 2017 when the father may have had reason to believe that Child A had no licence.

69I will hear submissions concerning the orders to be made as a consequence of the contraventions which I have found to be proved.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

RM
ASSOCIATE

4 SEPTEMBER 2018