Solomon & Todoro
[2021] FedCFamC2F 694
•23 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Solomon & Todoro [2021] FedCFamC2F 694
File number: MLC 3211 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 23 November 2021 Catchwords: FAMILY LAW – admissibility of evidence – validity of the purported parenting plan – purported parenting agreement from family dispute resolution not admissible – Section 10J of Family Law Act 1975 (Cth) and section 131 of Evidence Act 1995 (Cth) are different schemes. Legislation: Family Law Act 1975 (Cth) ss 10J, 60CC, 63C, 69ZT
Evidence Act 1995 (Cth) s 131
Cases cited: Bauer & Steggall [2011] FMCAfam 728
Knaus & Knaus [2010] FMCAfam 1370
Langer & Franke [2020] FCCA 1852
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Roux & Herman [2010] FMCAfam 1369
Trapp & Vonne [2009] FMCAfam 497
Waddell & Madden [2011] FMCAfam 1533
Division: Division 2 Family Law Number of paragraphs: 30 Date of hearing: 23 November 2021 Place: Melbourne Counsel for the Applicant: Ms S Fisken Solicitor for the Applicant: KCL Law Counsel for the Respondent: Mr N Kanarev Solicitor for the Respondent: Le Brun & Associates EX TEMPORE
REASONS FOR JUDGMENTJUDGE O’SHANNESSY
This is the ruling and reasons in the matter of Solomon & Todoro relating to the admissibility of the document purporting to be a parenting agreement. Firstly, I want to thank counsel for their assistance on this point and diligence in scouring the law reports for available authorities. The matter comes before me on day 1 of the final hearing. The matter concerns the living arrangements for the children of the relationship, X and Y (“the children”), who are four and three years of age respectively. The mother, Ms Solomon, (“the Mother”) is 33 years old and the father, Mr Todoro, (“the Father”) is 34 years old (collectively known as “the parents”). The parents disagree about the living arrangements for X and Y, and the trial is proceeding. The proceedings had been issued in March 2021, and interim orders were made on 14 July 2021 partly by consent and partly by the Court.
On 14 July 2021 the matter was listed for a final hearing on Tuesday, 22 November 2021. Included in those trial directions were directions for the parties to file outlines of case. On 19 November 2021, but early in the morning, the Mother's lawyers filed an outline of case that included objections to evidence relating to the Father’s trial affidavit filed on 10 November 2021. When the matter came on before me counsel agreed that I should deal with those objections first. In the course of submissions, it became apparent that the Mother objected to references to and the use of a document that the Father had attached or annexed to his trial affidavit. In this case I had permitted the parties to rely on material filed earlier, and the Father relied upon an affidavit filed early in the proceedings which annexed the same document.
OBJECTION TO EVIDENCE: SECTION 10J OF THE ACT
The Mother’s counsel withdrew objections to half a dozen objections that related to section 131 of the Evidence Act 1995 (Cth) (“the Evidence Act”) but maintained objections to the document and references to it pursuant to section 10J of the Family Law Act 1975 (Cth) (“the Act”). Section 10J provides:
Section 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.
The Mother’s position was that although the document did not expressly refer to what was said or any admission made during the dispute resolution process, the inescapable inference was that reference to it meant that the substance or at least part of the substance of what was said was referred to. The fact that the document, by inference, contained reference to the substance of what was said in family dispute resolution was not in dispute.
The Mother’s position: not a parenting plan
The Mother’s objection was based on section 10J of the Act and asserted that the document, having not been signed by both parties, was not a parenting plan pursuant to section 63C of the Act. It was conceded by the Mother that had it been signed it would have been a document that could be properly described as a parenting plan pursuant to section 63C of the Act. But, she said, it was not, and as a consequence it was inadmissible.
The Father’s position: section 10J does not apply
The Father’s position was that there were numerous parts of the evidence where the parties themselves had both referred to the terms of that document subsequent to the dispute resolution process and that, in circumstances where it had been referred to by both parties and both parties had relied upon it, the consequence was that the scheme of section 10J of the Act did not apply.
PARENTING PLAN: SECTION 63C OF THE ACT
There was not any dispute as to what section 10J of the Act said but rather whether or not it applied. Section 63C of the Act provides:
Section 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).
(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.
(2)A parenting plan may deal with one or more of the following:
(a)the person or persons with whom a child is to live;
(b)the time a child is to spend with another person or other persons;
(c)the allocation of parental responsibility for a child;
(d)if 2 or more persons are to share parental responsibility for a child--the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e)the communication a child is to have with another person or other persons;
(f)maintenance of a child;
(g)the process to be used for resolving disputes about the terms or operation of the plan;
(h)the process to be used for changing the plan to take account of the changing needs or circumstances of the child or the parties to the plan;
(i)any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
Note:Paragraph (f)--if the Child Support (Assessment) Act 1989 applies, provisions in a parenting plan dealing with the maintenance of a child (as distinct from child support under that Act) are unenforceable and of no effect unless the provisions in the plan are a child support agreement (see section 63CAA and subsection 63G(5) of this Act).
(2A)The person referred to in subsection (2) may be, or the persons referred to in that subsection may include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child).
(2B)Without limiting paragraph (2)(c), the plan may deal with the allocation of responsibility for making decisions about major long-term issues in relation to the child.
(2C)The communication referred to in paragraph (2)(e) includes (but is not limited to) communication by:
(a) letter; and
(b) telephone, email or any other electronic means.
(3) An agreement may be a parenting plan:
(a)whether made before or after the commencement of this section; and
(b)whether made inside or outside Australia; and
(c)whether other persons as well as a child's parents are also parties; and
(d)whether it deals with other matters as well as matters mentioned in subsection (2).
Note:One of the other matters with which a parenting plan may deal is child support (see section 63CAA).
(4)Provisions of a parenting plan that deal with matters other than the maintenance of a child are child welfare provisions .
(5)Provisions of a parenting plan that deal with the matter mentioned in paragraph (2)(f) are child maintenance provisions .
(6) A registered parenting plan is a parenting plan:
(a)that was registered in a court under section 63E as in force at any time before the commencement of the Family Law Amendment Act 2003 ; and
(b)that continued to be registered immediately before the commencement of the Family Law Amendment Act 2003 .
There was also discussion by counsel as to a comparable position under section 131 of the Evidence Act and/or communications during mediation. I asked counsel for assistance in regard to what authorities were available, and over the luncheon break the parties came up with a number of authorities where this issue had been dealt with. The Father's counsel, consistent with his obligation to the Court, referred me to the case of Langer & Franke [2020] FCCA 1852, a decision of Judge Morley on 12 August 2019, and I refer to paragraph 37 of that judgment:
[37]The parties attended a Family Dispute Resolution mediation on 8 November 2017 at the S Family Relationship Centre. A document was prepared as a result of that mediation and entitled “Parenting Agreement”, a copy of which is annexure ‘A’ to the father’s affidavit. However, the document never became a parenting agreement within the meaning of that term in the Act as it was not signed by either party.[2] As the document is not a parenting agreement and is patently the product of Family Dispute Resolution between the parties, having been conducted by persons described on the document as “family dispute resolution practitioners”, I cannot take notice of anything in that document past the title page as they are not admissible in evidence.
[Emphasis added]
It is implicit in Judge Morley’s reference at paragraph 37 that had the document become a parenting agreement in that case it would have been admissible, but as it was not it could not be referred to.
I infer that contained within Judge Morley’s reasoning was the process that to refer to what the document said necessarily and inescapably referred to, at least in part, the substance of what was said during the dispute resolution process.
The Mother’s counsel referred me to the matter of Roux & Herman [2010] FMCAfam 1369, a decision of Judge Riethmuller, as he then was, on 18 November 2010, and paragraphs 8 through to 18 of those reasons bear recitation:
[8]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.
[9]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.
[10]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.
[11]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.
[12]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.
[13]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.
[14]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).
[15]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.
[16]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.
[17]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.
[18]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.
[Emphasis added]
It needs to be noted and emphasised that in that case, as recited at paragraph 14, it was agreed that the document was a parenting plan that complied with the formal requirements of section 63C of the Act. In that case, where the issue of duress or oppression was at issue as to what the process was in obtaining the parenting plan document, Judge Riethmuller had ruled, and I repeat:
[18]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.
The Mother's counsel also referred me to the matter of Waddell & Madden [2011] FMCAfam 1533, and in that case section 63C was recited at paragraph 16, and his Honour pithily observed that while the document was referred to as a parenting plan, "it is nothing of the sort". Paragraphs 21, 22 and 23 of that decision are as follows:
[21]Section 131 of the Evidence Act 1994 also excludes and renders inadmissible, (subject to a number of exceptions as enumerated in that section), evidence of negotiations between parties.
[22]On the basis of either s.10J of the Act or s.131 of the Evidence Act, the document that has been prepared could not be admissible in any Court for any purpose. The document clearly seeks to set out an agreement that was apparently negotiated between parents with the assistance of, and in the company of, a Family Dispute Resolution Practitioner, and accordingly must, by necessity, contain and be a record of evidence of anything said in the company of a Family Dispute Resolution Practitioner.
[23]On that basis, and as I have indicated, I have not considered or had any reference to the document and, indeed, it will be struck out as part of the evidence presently before the Court as it should not be here. That is not intended as some castigation or overt criticism of the legal practitioners for the parties but simply a reflection of the mandatory nature of the exclusion of that evidence, specifically under section 10J, but also by reference to s. 131 of the Evidence Act.
I was also referred to the matter of Knaus & Knaus [2010] FMCAfam 1370 at paragraphs [17] to [20] and [21] to [34] and those long passages are as follows.
Privilege provided by the Family Law Act
[17]It is convenient to commence with a consideration of the specific provisions of the Family Law Act. Part II deals with non-court based family services. Division 1 provides for a number of accreditation rules which can be provided for in the regulations. The regulations do contain those rules in regulations 57 to 61. There is nothing before me, in this case, to show that Mr M is registered, and neither party alleges that Mr M was so registered.
[18]The confidentiality provisions contained within ss.10D and 10E, 10F or 10J do not appear to apply unless Mr M were a family counsellor or family dispute resolution practitioner, as defined in ss.10C or 10G of the Act. In the circumstances, I am not persuaded that the provisions of the Act provide any basis to oppose the production of the material subpoenaed.
[19]I accept the submission from counsel for the wife that, even if the provisions of the Act did apply, s.10D provides the basis for Mr M to make a disclosure for the purposes of protecting a child from the risk of harm, or preventing or lessening a serious and imminent threat to the life of health of a person (there being an identical provision in section 10H with respect to family dispute resolution) which would found the disclosure to the doctor.
[20]Whether this would ultimately provide part of a foundation for the inadmissibility of the evidence of Mr M under Part II of the Family Law Act (in light of ss.10E and 10J respectively), it is not a matter that I would need to determine at this point. As a result of Mr M not being a counsellor covered by Part II, I conclude that the Family Law Act provisions in Part II do not provide a basis for upholding the objections to the subpoena.
Section 131 of the Evidence Act
[21]Section 131 of the Evidence Act excludes evidence of settlement negotiations save in specified circumstances set out in s.131(2). …
…
[23]It is well accepted that there does not need to be proceedings pending before the privilege provided for in s.131 is available.
…
[26]In the circumstances, s.131 of the Commonwealth Evidence Act appears to cover the field with respect to without-prejudice privilege and marriage counselling, replacing the common law privileges. For this reason, the arguments based upon the common law privilege are not available and the circumstances must be considered within the ambit of s.131.
[27]I note that dealing with such an application entirely within the ambit of s.131 is consistent with the reasoning adopted by Dessau J in Wilson & Roberts (No.2) [2010] FamCA 734, [23–37]. I also note that the decision approves the proposition that s.69ZT(1) of the Family Law Act does not oust the operation of s.131 of the Evidence Act, as s.131 does not fall within the various parts of the Evidence Act dealt with by s.69ZT.
[28]As a result, I find that s.131(1) appears to apply to prohibit the adducing of this evidence, unless it falls within an exception in s.131(2).
[29]The relevant exceptions, for the purpose of this case, are ss.131(2)(c) and (g), which provide as follows:
•(2) Subsection (1) does not apply if ...
•(c) the substance of the evidence has been partly disclosed with the express or implied consent of the persons in dispute, and full disclosure of the evidence is reasonably necessary to enable a proper understanding of the other evidence that has already been adduced, or ...
•(g) evidence that has been adduced in the proceeding, or an inference from evidence that has been adduced in the proceeding, is likely to mislead the court unless evidence of the communication or document is adduced to contradict or to qualify that evidence[.]
…
[33]The letter from the counsellor sets out four matters that need to be considered:
(a)the presentation of the husband on 24 February 2010;
(b)interactions with respect to the follow-on appointment;
(c)the husband’s presentation in the session on 3 March 2010; and
(d)the overall presentation of the husband leading Mr M to state that he believes the husband is a suicide risk and in need of urgent psychiatric assessment and perhaps hospitalisation.
[34]In Field & Commissioner for Railways (NSW) [1957] HCA 92; (1957) 99 CLR 285; 32 ALJR 110, the High Court identified the purpose of the privilege was to enable litigants to engage with one another freely and without the embarrassment which the liability of the communications being put in evidence might impose upon them. The litigants are relieved of this embarrassment so that their negotiations to avoid litigation or to settle may go unhampered (at page 291). Importantly, the court went on to state:
•This form of privilege, however, is directed against the admission in evidence of express or implied admissions. It covers admissions by words or conduct. For example, neither party can use the readiness of the other to negotiate as an implied admission. It is not concerned with objective facts which may be ascertained during the course of negotiations. These may be proved by direct evidence. But it is concerned with the use of the negotiations, or what is said in the course of them, as evidence by way of admission.
…
[emphasis added]
The point of that decision was that the confidentiality provisions of those sections do not apply unless the process was before a qualified family dispute resolution practitioner as qualified or accredited within the regulations.
In this case there was no dispute, and/or it was common ground that the person who conducted the dispute resolution process was appropriately accredited as a family dispute resolution practitioner.
There was some discussion of section 131 of the Evidence Act. That provides as follows:
Section 131 Exclusion of evidence of settlement negotiations
(1)Evidence is not to be adduced of:
(a)a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute; or
(b)a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute.
(2) Subsection (1) does not apply if:
(a)the persons in dispute consent to the evidence being adduced in the proceeding concerned or, if any of those persons has tendered the communication or document in evidence in another Australian or overseas proceeding, all the other persons so consent; or
(b)the substance of the evidence has been disclosed with the express or implied consent of all the persons in dispute; or
(c)the substance of the evidence has been partly disclosed with the express or implied consent of the persons in dispute, and full disclosure of the evidence is reasonably necessary to enable a proper understanding of the other evidence that has already been adduced; or
(d)the communication or document included a statement to the effect that it was not to be treated as confidential; or
(e)the evidence tends to contradict or to qualify evidence that has already been admitted about the course of an attempt to settle the dispute; or
(f)the proceeding in which it is sought to adduce the evidence is a proceeding to enforce an agreement between the persons in dispute to settle the dispute, or a proceeding in which the making of such an agreement is in issue; or
(g)evidence that has been adduced in the proceeding, or an inference from evidence that has been adduced in the proceeding, is likely to mislead the court unless evidence of the communication or document is adduced to contradict or to qualify that evidence; or
(h)the communication or document is relevant to determining liability for costs; or
(i)making the communication, or preparing the document, affects a right of a person; or
(j)the communication was made, or the document was prepared, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty; or
(k)one of the persons in dispute, or an employee or agent of such a person, knew or ought reasonably to have known that the communication was made, or the document was prepared, in furtherance of a deliberate abuse of a power.
(3)For the purposes of paragraph (2)(j), if commission of the fraud, offence or act is a fact in issue and there are reasonable grounds for finding that:
(a)the fraud, offence or act was committed; and
(b)a communication was made or a document was prepared in furtherance of the commission of the fraud, offence or act;
the court may find that the communication was so made or the document so prepared.
(4) For the purposes of paragraph (2)(k), if:
(a)the abuse of power is a fact in issue; and
(b)there are reasonable grounds for finding that a communication was made or a document was prepared in furtherance of the abuse of power;
the court may find that the communication was so made or the document was so prepared.
(5)In this section:
(a)a reference to a dispute is a reference to a dispute of a kind in respect of which relief may be given in an Australian or overseas proceeding; and
(b)a reference to an attempt to negotiate the settlement of a dispute does not include a reference to an attempt to negotiate the settlement of a criminal proceeding or an anticipated criminal proceeding; and
(c)a reference to a communication made by a person in dispute includes a reference to a communication made by an employee or agent of such a person; and
(d)a reference to the consent of a person in dispute includes a reference to the consent of an employee or agent of such a person, being an employee or agent who is authorised so to consent; and
(e)a reference to commission of an act includes a reference to a failure to act.
(6) In this section:
"power" means a power conferred by or under an Australian law.
SECTION 10J & SECTION 131 ARE DIFFERENT SCHEMES
By a comparison of 10J of the Act and 131 of the Evidence Act it is immediately apparent that there are quite different schemes applicable. For example, there is no equivalent, pursuant to section 10J of the Act, to any of the qualifying sections of subsection (2) such as consent at (2)(a) or where the evidence has already been disclosed, as in (b), or such as (g), that is, that without the impugned evidence the Court is likely to be misled.
One of the issues in this case is the motivations of each of the parties early in 2020 following the child dispute resolution process. I am assisted by the orthodox approach to interpretation of a statute described in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (‘Project Blue Sky’). I was also referred to Bauer & Steggall [2011] FMCAfam 728 (‘Bauer & Steggall’), not that anyone particularly relied on it, but for ensuring that relevant authorities were before the Court. Bauer & Steggall dealt with a different issue, and the observations would be obiter, in any event, but there is a conflict between the observations of the judge in first instance in Bauer & Steggall at paragraph 58 where the judge observed that the document described as a draft parenting plan had not been executed by the parties when referring to the decision of Judge Riethmuller in Roux & Herman.
Paragraph 14 of Roux & Herman makes it clear that the document complied with all of the provisions of section 63C(1), and, hence, the inescapable inference is that the document had been executed by parties. In that context and for those reasons, I do not rely upon Bauer & Steggall in this case in regard to 10J. I must grasp the nettle in this case of the observations of Judge Riethmuller. At paragraphs 8 and 9 in Roux & Herman, as he did in Trapp & Vonne [2009] FMCAfam 497, Judge Riethmuller made the distinction between the terms of an agreement that is reached at the end of the process of family dispute resolution and something that is said during the process of family dispute resolution, and, in summary, his Honour observed that the section refers to things said during that process, not the contents of an agreement reached between the parties.
Were that statement to be the test in this case, that would very much support the father's position of the admissibility of the document; however, it is clear, as the decision goes on, that his Honour very much relied upon section 63C, and ultimately, his Honour determined that the document was admissible because it was a parenting plan in accordance with section 63C and, I regard paragraph 13 as the ratio or key point as opposed to the general discussion at paragraph 9 in that decision.
In Project Blue Sky the High Court said at [69] to [71] that I must:
…construe the relevant provision so that it is consistent with the language and purpose of all of the provisions of the statute. The meaning … must be determined by reference to the language of the instrument viewed as a whole.
And further that the sections:
…must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals…
And that construing a section of an Act:
…must strive to give meaning to every word of the provision...
Hence, I must look at 10J of the Act, but I must also look at the scheme of section 63C of the Act. The Act at section 69ZT refers expressly to the Evidence Act and deals with what sections of the Evidence Act are to apply and which are not. Section 131 of the Evidence Act is expressly applicable, or rather not excluded, by operation of section 69ZT. Hence it is clear that the theoretical mind of Parliament had before it, in considering the whole of the Act, section 131 of the Evidence Act with its manifold qualifying provisions. Notwithstanding that section 131 of the Evidence Act applied and, without section 10J, would apply to the family dispute resolution process, Parliament has chosen to insert the words of section 10J (recited above at paragraph 3).
Taking the Act as a whole, it becomes abundantly clear that Parliament intended a quite different scheme in regard to the dispute resolution process to ordinary without prejudice negotiations. It is clear that Parliament intended not only a quite different but a less flexible, less qualified and more restrictive scheme of admissibility of evidence.
CONCLUSION
The consequence of taking those provisions as a whole is that a document that is only a concluded agreement reached during or at the end of family dispute resolution process, where there is an inescapable inference that the document repeats the substance of what was said, or part of the substance of what was said is not admissible in Family Court proceedings.
Where such a document has the additional steps such as being in writing, being signed by the parties and being dated and so complying with section 63C, that document would be admissible. The Father’s submissions were very much concerned with what was seen to be the unfairness or inconsistency between the parties being encouraged by provisions in the Act to reach agreement and then being restricted about evidence as to that agreement. I acknowledge the point and substance of those submissions. My conclusion is that the very different schemes of section 10J of the Act with section 131 the Evidence Act means that on occasions, not necessarily every occasion but certainly on occasions such as this one, the parties could, hypothetically, reach agreement during or at the end of this section of the dispute resolution process and then one or both parties, at different times, both rely upon and recant that agreement and that would not make the contents of the document admissible, unless section 63C was complied with and hence it was parenting plan.
The circumstance that not being able to refer to the document may mean that the Court may be misled does not assist getting over or around the clear provisions of section 10J of the Act. If there was only without prejudice negotiations or mediation privilege to be taken into account then in that circumstance section 131(2)(g) of the Evidence Act would apply.
Hence I rule that the document is inadmissible. I note that not only am I assisted by counsel’s work but I am relying upon their skill to put all relevant authorities before me and they have done so.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 23 November 2021
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