Current at 28 May 2024 

A party in a family law dispute may make an offer to another party to settle all or part of a case at any time before the Court makes an order disposing of the case. This may occur before, or in the absence of, formal court proceedings between the parties.

The confidentiality of offers (and all dispute resolution processes) is fundamental to the successful resolution of legal disputes without court intervention. The greater assurance given to a party of that confidentiality, the more likely that party will be to make an offer or participate in dispute resolution without reservation.

Offers are therefore generally made on a “confidential” or “without prejudice” basis. This means that a party cannot mention the fact that such an offer has been made or the terms of that offer as party of the court proceedings concerning that dispute.

This applies equally in parenting matters.

The principles relating to confidentiality of offers in parenting matters are derived from a number of sources, including:

• legislation (such as sections 10D and 10H of the Family Law Act 1975 for married couples and equivalent sections 49 and 53 of the Family Court Act 1997 for de facto couples outlining the confidentiality of communications in family counselling and Family Dispute Resolution);
• common law (such as the principles relating to “without prejudice” communication – see for example the line of authority stemming from the Full Court’s decision in Steel and Steel [1992] FamCA 93); and
• professional conduct rules (for legal practitioners).

In Western Australia, these principles have also been codified in the Family Court Rules 2021 which state that an offer to settle is without prejudice unless the offer states that it is an open offer.

Whilst these principles serve an important function within the legal system, they also have the potential to conflict with the paramountcy principle to be applied by the Court when determining all parenting matters, being that the best interests of the child are the paramount consideration.

So what happens when the principles of confidentiality conflict with a child’s best interests?

There are several reported decisions illustrating the Court’s approach in these situations.

In Hutchings v Clarke [1993] FamCA 22, the Full Court considered the admissibility of a statement made that would have been considered to be covered by “without prejudice” privilege. It concluded (at [20]) that while there is a need for confidentiality in parenting matters, “the protection of the welfare of the child is another public interest…and declared to be the paramount consideration” and the Court “must give priority to considerations of the welfare of the child …”.

The Family Court of Western Australia considered this issue in S and K [2007] FCWA 17, in which Justice Crisford found (at [28]-[32]) that “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” and “offers can be made for a number of reasons and the overarching principle is always the best interests of the child…the Court should not be precluded from obtaining information to ensure that principle is met…”.

The Court therefore has the discretion to include and consider evidence of an offer or negotiation if it considers that it is in the child’s best interests to do so.

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Family law matters can be difficult and complex. If you require any assistance with a family law dispute, always contact a legal practitioner who will be able to help.

O’Sullivan Davies has practitioners experienced in parenting matters. More information about our services can be found at our About Us page here.

Disclaimer

This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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