Roux and Herman - [2010] FMCAfam 1369

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ROUX & HERMAN

[2010] FMCAfam 1369

FAMILY LAW – Family law and child welfare – The Family Law Act 1975 (Cth) and related legislation – Parenting plan made at Dispute Resolution not confidential.
FAMILY LAW – Family law and child welfare – The Family Law Act 1975 (Cth) and related legislation – Parenting plan – Onus on person relying on plan to prove plan made free from threat, duress or coercion.

Family Law Act 1975, ss.10J, 63C, 65DAB
Evidence Act 1975, s.131

Applicant:

MR ROUX

Respondent:

MS HERMAN

File Number:

MLC 3642 of 2008

Judgment of:

Riethmuller FM

Hearing date:

18 November 2010

Date of Last Submission:

18 November 2010

Delivered at:

Melbourne

Delivered on:

19 November 2010

REPRESENTATION

Counsel for the Applicant:

Mr Fronistas of Counsel

Solicitors for the Applicant:

Kyrou Lawyers

Counsel for the Respondent:

Mr Curtain of Counsel

Solicitors for the Respondent:

Ryan Carlisle Thomas

ORDERS

The application to admit exhibit 1 (an alleged parenting plan) into evidence is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Roux & Herman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 3642 of 2008

MR ROUX

Applicant

And

MS HERMAN

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application concerning the admissibility of evidence of a document which is contained within an envelope marked exhibit 2, which is said to be a parenting plan.
The background of the case is that it is now before the Court on an issue as to which school the child of the parties should attend next year for high school, either [C] School or [F] School.
The parties had attended family dispute resolution with LifeWorks, a provider who is nominated under the Family Law Act 1975, and therefore their attendances at that process are confidential, and evidence may not be given of anything said, or any admission made, during the course of that process in accordance with s.10J of the Family Law Act.
The mother seeks to tender the parenting agreement and rely upon it in the forthcoming trial. The father objects, relying on s.10J. The preliminary issue was heard before me so as to make rulings on the admissibility of the evidence prior to any trial in the matter.
The parenting plan would be relevant to any trial in the matter, pursuant to s.65DAB, which is in the following terms:
65DAB [Court to have regard to parenting plans] When making a parenting order in relation to a child, the court is to have regard to the terms of the most recent parenting plan (if any) that has been entered into between the child's parents (to the extent to which that plan relates to the child) if doing so would be in the best interests of the child.
The question then arises as to whether or not the document itself is a parenting plan within the meaning of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Roux and Herman

Details

AGLC: Roux and Herman [2010] FMCAfam 1369
Case: [2010] FMCAfam 1369
Decision Date

CaseChat Overview and Summary

Roux and Herman is a case involving a dispute over the admissibility of a parenting plan in evidence, in the context of a child's schooling arrangement. The Federal Magistrates Court of Australia had to decide whether the parenting plan, created during a family dispute resolution process, could be admitted as evidence despite the confidentiality provisions of the Family Law Act 1975. The legal issue before the court was whether the parenting plan could be considered admissible under the Act, despite the fact that the family dispute resolution process was confidential, and whether the onus lay on the party relying on the plan to prove that it was made free from threats, duress, or coercion.

The court found that a parenting plan entered into during the course of, or at the end of, a family dispute resolution process is prima facie admissible into evidence in the proceedings for the purpose of having regard for it under s.65DAB of the Family Law Act 1975. However, the court was unable to determine whether the alleged parenting plan was made free from any threat, duress, or coercion as required by s.63C(1A) of the Act. The operation of s.10J of the Act prevented the father from leading any evidence as to what was actually said to him or the context of the precise statement because of the way in which the section operates. Consequently, the court could not conclude that the parenting plan was admissible, and therefore dismissed the application to admit the exhibit into evidence.

The Federal Magistrates Court noted that the operation of s.10J in this case created a significant problem, as it had denied a party the opportunity of relying upon a parenting plan that may well have been entered into entirely in accordance with the Family Law Act. The court suggested that this issue could be drawn to the attention of the legislature when considering the policy underpinnings and legislative drafting of the provisions of Division 3 of Part II of the Family Law Act.

Orders