"Without Prejudice" offers in Child Dispute Cases
Updated: May 2
Parenting disputes in the Family Court affect people deeply. When accusations are being thrown around, and in particular when children are being withheld from a parent, tensions can run high. A person can feel a strong desire to agree to parenting arrangements they feel are unfair because they want it to be over, or want their children returned.
During negotiations, you might receive a proposed “Minute of Consent Orders” for parenting arrangements that you don’t agree with, but you may feel tempted to sign them to see your kids again. In most cases, each parent will believe that what they are proposing is necessary for the best interests of the children, even though their beliefs differ.
In some circumstances however, a party might choose to withhold children as a strategy to get the other party to sign their preferred parenting orders – rather than because they believe they need to withhold the children to keep the children safe. This is rare, but does happen.
However, communications exchanging proposals to settle are typically ‘Without Prejudice’, which means that the proposed arrangements cannot be adduced in evidence should your dispute end up before a judge. If you think someone is trying to pressure you to agree in a way that demonstrates their bad faith, you may want to show this to the Court, to have the Court to take this into account.
However, the general rule for ‘Without Prejudice’ communications is that they cannot be shown to the Court.
Without Prejudice Communications
The term ‘Without Prejudice’ invokes a particular kind of legal privilege, which is specifically permitted for negotiating settlements. The privilege is that that communication cannot be relied on by the other party in Court proceedings. For example, it cannot be introduced as evidence claiming, for example, to demonstrate the weakness of that party’s case.
Providing the other party’s without prejudice offers and communication to the Court is typically disallowed, and if they are filed by the other party, they will be struck out by the Court in line with this privilege, and for good reason. This is because the ability to engage in ‘Without Prejudice’ communications is generally to the advantage of both parties, as it allows them to make offers to settle a matter without fear of having the offer brought up later.
This applies in the Family Court, it can be found in the Family Law Rules at 10.2:
FAMILY LAW RULES 2004 – RULE 10.02 OPEN AND “WITHOUT PREJUDICE” OFFER
10.02(1) An offer to settle is made without prejudice (a without prejudice offer) unless the offer states that it is an open offer.
10.02(2) A party must not mention the fact that a without prejudice offer has been made, or the terms of the offer:
(a) in any document filed; or
(b) at a hearing or trial.
The rule against providing without prejudice communications to the Court is a part of a broader set of rules regarding evidence.
Family Court and the Rules of Evidence
The Family Court has a number of notable exceptions to the normal rules of Evidence. The ability to quote children’s speech, when they are not giving evidence themselves, which would normally be a breach of the Rule of Evidence against Hearsay, is the most well-known example, located at 69ZV of the Family Law Act (“the Act”).
Family Law however can involve a number of other exceptions to standard rules of evidence. More generally, 69ZT “Rules of evidence not to apply unless court decides,” specifies the parts of the Evidence Act (Cth), which codifies the principles of evidence, which the Court may decide whether or not to apply in child-related proceedings as per the considerations in that section, and what weight to give them. This includes documents and other evidence including demonstrations, experiments and inspections, and evidence that is hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character.
The important principle to keep in mind is that in parenting matters, the primary consideration is the best interests of the children. What is in the best interests of the children is determined by consideration of primary and secondary factors at s60CC of the Family Law Act.
One interesting example of a departure from normal legal principles regards ‘Without Prejudice’ communication. Typically, if a party tries to put ‘Without Prejudice’ communication before the Court as evidence, it will be struck out and not considered by the Court.
Can Without Prejudice Communications ever be Submitted to the Court?
However, there are exceptions, generally and in the Family Law specific to the normal ‘Without Prejudice’ principles. Sometimes, without prejudice communications will include content which go towards demonstrating a fact of sufficient significance that the Court may choose to allow their entry into evidence.
In Parenting matters, the best interests of the children are the primary consideration, as per s60B and s60CA. As such, if the other party provides ‘Without Prejudice’ communications, such as an offer that provides for orders which implicitly contradicts other assertions that have been made in Court documents, the court may be willing to enter the ‘Without Prejudice’ communications into evidence.
This has been discussed in the WA case S and K  FCWA 17, where Her Honour Justice Crisford identifies, at 28-32:
28 It goes without saying that it is important to preserve confidentiality in relation to offers. Full and frank negotiation needs to take place between parties so that matters may be resolved without the need for further court action. Often in children’s matters, the very avoidance of litigation can itself be in the best interests of the children. Whilst children are not parties to the proceedings, they are well and truly the subject of the proceedings. The principles governing these sorts of proceedings are very different to those relating to property matters.
29 However, whilst it is important for negotiation that confidentially be preserved, especially in light of the rules of the Court, I am of the view that the preservation of confidentiality is not absolute. One of the main purposes of the Rules is that cases are resolved in a just manner. The Rules do not provide a complete code of the Court’s powers. Other powers are found in the provisions of various Acts, the Court’s inherent jurisdiction and the common law.
30 Hutchings v Clarke may well stand for the proposition that the issue of legal professional privilege does not operate to exclude evidence if in the discretion of the trial Judge such evidence is required to be put before the Court in order to preserve the best interests of the child.
31 There is no doubt that it is important to preserve confidentiality and to foster an environment that allows parties to negotiate without fear they will be compromised in an endeavour to settle matters. However, offers can be made for a number of reasons and the overarching principle is always the best interests of the child. It is not the sole consideration but it is the paramount one.
32 The Court should not be precluded from obtaining information to ensure that the principle is met, especially in cases of such naked acrimony as this.
As such, if you have been sent ‘Without Prejudice’ communications in a Family Law matter, where untrue claims are made or strict orders are being sought when the other party does not actually require those Orders, the Court may be willing to accept that correspondence of an offer to settle into evidence.
Such a circumstance might be withholding children except when supervised by a professional supervision agency; while simultaneously making an offer that involves children spending time without any external supervision.
However, other avenues for adducing the same evidence ought to be pursued first. The Court will be very hesitant to override the general rule regarding ‘Without Prejudice’ offers, as ‘Without Prejudice’ offers are a very significant element which benefit the ability to conduct settlement negotiations, and this privilege will not be dismissed lightly.
Indeed, settling a parenting matter by agreement may, in many cases, be very much in the best interests of the child, as ongoing proceedings may very well put children under stress, increase hostility between parents, and potentially require the children to be involved in proceedings to some degree.
As such; the possibility of successful negotiations, and thus ability to engage in these negotiations ‘Without Prejudice’, towards reaching parenting orders both parties may not like but are prepared to accept may well be a better outcome than the outcome of ongoing proceedings even should the party’s preferred orders be made and their concerns legitimate, given the impact on the children of ongoing proceedings.
If you need advice about your family court negotiations, please contact us on (08) 9408 5212 for a free telephone consultation.
Please note that the above is general information and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific case in question.