Roux and Herman

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.