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 the Act and whether or not the contents of it can be admitted into evidence despite s.10J.
Section 10J is in the following terms:
10J [Admissibility of communications in family dispute resolution and in referrals from family dispute resolution]
(1) Evidence of anything said, or any admission made, by or in the company of:
(a) a family dispute resolution practitioner conducting family dispute resolution; or
(b) a person (the professional ) to whom a family dispute resolution practitioner refers a person for medical or other professional consultation, while the professional is carrying out professional services for the person;
is not admissible:
(c) in any court (whether or not exercising federal jurisdiction); or
(d) in any proceedings before a person authorised to hear evidence (whether the person is authorised by a law of the Commonwealth, a State or a Territory, or by the consent of the parties).
(2) Subsection (1) does not apply to:
(a) an admission by an adult that indicates that a child under 18 has been abused or is at risk of abuse; or
(b) a disclosure by a child under 18 that indicates that the child has been abused or is at risk of abuse;
unless, in the opinion of the court, there is sufficient evidence of the admission or disclosure available to the court from other sources.
(3) Subsection (1) does not apply to information necessary for the practitioner to give a certificate under subsection 60I(8).
(4) A family dispute resolution practitioner who refers a person to a professional (within the meaning of paragraph (1)(b)) must inform the professional of the effect of this section.
What is sought to be provided in evidence in this case is not something said or an admission made in the dispute resolution process, but the terms of an agreement that has been reached at the end of that process.
It seems to me that it cannot properly be said that a parenting plan agreement reached at the end of such a process could be said to be within the confines of s.10J. The section refers to things said during that process, not the contents of an agreement reached between the parties. On a broader level, such a reading of s10J would make the dispute resolution process a redundant one if an agreement reached between the parties, embodied in a parenting plan, were not able to be relied upon later in court.
This is particularly the case here, given that under the scheme of the Act, parenting plans are available to parties as a less formal method of reaching an agreement about parenting arrangements and then obtaining court orders. In this sense, parenting plans are a form of agreement contemplated by the Act, just as a contract might be entered into by way of settlement of a commercial or civil matter. Parenting plans, though not a common law contract, gain force as the result of the various provisions of the Act. However, for the purpose of placing them in the context of without prejudice negotiations or negotiations in family dispute resolution, they fulfil a similar purpose to a settlement contract of accord and satisfaction.
It was also argued that because the parenting plan in this case is said not to cover the entirety of the parenting issues between the parties, it could not be said to be a parenting plan within the meaning of the Act, or at least it would still be covered by s.10J.
I reject this proposition entirely. It is not at all uncommon for parties to settle part of a parenting dispute and not be able to settle other parts. The fact that they had settled part of a dispute, and embodied that in a parenting plan, does not mean that the plan dealing with at least part of the issues is no longer a parenting plan within the meaning of the Act, nor should it be covered by the provisions of s.10J. Section 63C(1)(c) clearly contemplates that only one of the matters in s.63C(2) may be covered by the plan. Section 63C(2)(i) specifically refers to:
(i) any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
I therefore find that a parenting plan entered into during the course of, or at the end of, a family dispute resolution is prima facie admissible into evidence in the proceedings for the purpose of having regard for it under s.65DAB.
I turn then to consider whether or not the document in this case is a parenting plan within the meaning of s.63C. In this case, it is agreed that the parenting plan complies with all of the formal requirements set out in s.63C(1) which is in the following terms:
63C [Meaning of parenting plan and related terms] (1) A parenting plan is an agreement that:
(a) is in writing; and
(b) is or was made between the parents of a child; and
(ba) is signed by the parents of the child; and
(bb) is dated; and
(c) deals with a matter or matters mentioned in subsection (2).
As this was agreed between the parties, it was not necessary for me to inspect the document, and that is why it remains sealed in an envelope pending the determination of its admissibility, and so as to ensure that I would not be aware of its actual contents, if it was not ultimately admissible in the proceedings.
The issue that arose was whether or not the parenting plan was an agreement that was free from any threat, duress or coercion as required by s.63C(1A). That section reads as follows:
63C [Meaning of parenting plan and related terms]
…
(1A) An agreement is not a parenting plan for the purposes of this Act unless it is made free from any threat, duress or coercion.
The father in this case says that at the time that he executed the document, he was exhausted after a lengthy period of family dispute resolution, some four hours, it being the second session within two days, the first being the day before for some three hours. He says that at the time, he had a migraine and that he felt threatened and under great duress as a result of what had been said by the person conducting the family dispute resolution in a private session with the dispute resolution provider.
As a result of s.10J, it was not open to the father to lead 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. He was therefore limited to the bare statement that he felt threatened and under great duress.
Some days later, when he attended for another session, he took in a letter which he provided to the dispute resolution provider and then walked out. He said that this was a planned arrangement, and he did it as a result of how he felt on the previous occasion. Again, the contents of that conversation and the contents of the letter are matters that appear to be precluded from being placed in evidence as a result of s.10J.
He was cross-examined about the fact that there was no reference to his claim with respect to threats and coercion or duress before this application. In a number of letters by his solicitors, there was, however (see exhibit 1), a reference to an objection by his solicitors to any of the contents of the family dispute resolution process being put in evidence, including the terms of the parenting agreement.
It seems that the general statement in the letter, in part, was influenced by a view that his counsel held and argued in this case as regards the operation of s.10J. That particular view of s.10J I have found is not correct, as I have set out above.
Ultimately, I am persuaded that the father did take steps that indicated his objection to the process, or his distaste for the process, early on and that it could not be said that in his evidence before me, I should simply reject his claim entirely. However, the facts and circumstances leading to the claim of threat or duress or coercion were not able to be placed before me, nor were they able to be cross-examined upon by counsel for the mother. It is, therefore, not possible for me to properly determine whether or not he was subject of a threat, duress, or coercion of the type described in s.63C(1A).
With respect to the father’s brief evidence, as to how he felt as a result of the dispute resolution process, and why he signed the document, he presented as somewhat emotive and gave the impression of being genuine in his concerns about the circumstances and distaste for the process. Having said that, without more evidence of the circumstances it is simply not open for me to make any critical review of what was done and whether it would be a threat, duress, or coercion within the meaning of s.63C(1A), or the impact of the inevitable stress of this type of litigation.
The mother also gave evidence, however she was not present at the time that the document was signed and therefore was not able to give evidence of the circumstances of its signing. In any event, such evidence would nonetheless have been covered by s.10J, to the extent that it involved anything being said by anyone involved in that process. She agreed that there were private sessions during the process, and this is in accord with the evidence given by the father. There is nothing about the mother’s evidence that would have led me to reject her version of events on this occasion.
I must therefore turn to the question of who bears the onus of proof in this case, for admissibility of this evidence. In order to show that this evidence is admissible, that is material that I should rely upon, or potentially rely upon under s.65DAB, it is for the mother to demonstrate that it is a parenting plan within the meaning of s.63C.
There is no dispute with respect to compliance with the formal parts of the section in s.63C(1). There is a real dispute with respect to s.63C(1A), which the operation of s.10J prevents me from resolving.
Whilst in most cases, the bare tendering of a parenting agreement in the absence of any other evidence would be sufficient circumstantial evidence to conclude that it is a parenting plan within s.63C, this is not such a case. This is a case where evidence has been given that is prima facie evidence of a real issue relating to the operation of s.63C(1A). Once there is prima facie evidence of a real issue in this regard, then the Court must go on to determine whether or not s.63C(1A) has been engaged.
In this case, I am unable to make a finding about whether or not the threat, duress, or coercion alleged is sufficient to satisfy the section. The section says that the document which is an agreement is not a parenting plan unless it is made free from any threat, duress, or coercion. In circumstances where there is: (a) prima facie evidence of the type contemplated by s.63C(1A); and (b) no material from which I could form a view on the balance of probabilities that the agreement is made free from such threat, duress, or coercion, I am left in the position where I am unable to conclude that it is a parenting plan within the meaning of ss.63C(1) and (1A).
In these circumstances, I have no choice but to rule that the document is not admissible, and therefore I do not direct that the envelope containing it be opened at this time. It will remain an exhibit, in case the matter goes further on appeal and it is determined on a later occasion that it is appropriate to open the envelope.
I should add that the operation of s.10J in this case creates a very real problem, in that it has denied a party the opportunity of relying upon a parenting plan, that may well have been entered into entirely in accordance with s.63C. This significantly undermines the efficacy of any family dispute resolution process. Had the section had exceptions of the type ordinarily provided for in the common law or those contained in s.131 of the Evidence Act 1975, this difficulty could not have arisen. I make these observations only so that it might 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.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Date: 8 December 2010