Updated: Feb 3, 2020
For all lawyers the term “without prejudice” indicates the magical cloak of invisibility. Why? Because a party can freely engage in negotiations with the other party without the fear that any offer made during such negotiations can be used in Court against either party if no agreement is reached.
In essence, “without prejudice” allows for parties to freely trade their Precious Memories photo album for the Chinese Porcelain Vase they found in a fancy market in Beijing or the original Picasso painting to be traded for a generational family heirloom. Hey, now, new memories can always be made, but a Porcelain Vase is forever! … unless a cat knocks it over!
Family law rules afford a certain freedom for without prejudice negotiations. But how far can the cloak of invisibility be extended when you are no longer trading objects and swiping sentimental memories and are in fact dealing with someone’s life...a child’s life.
Without prejudice and the Family Law Rules 2004
Under Rule 10.2 of the Family Law Rules 2004 a party can engage in negotiations for the purpose of resolving a family law dispute without the fear that such negotiations or offers made by either party will be referenced in any document that is filed with the Court or during the hearing or a trial of that family law matter, should court proceedings are commenced.
Rule 10.2 of the Family Law Rules 2004 is very clear in that it prevents without prejudice negotiations or offers being disclosed to the Court. But what happens when during such without prejudice negotiations or offers, a party proposes to trade time with the child for a financial gain? Or what if, it leverages the child’s welfare or interests to prevent a party from doing something that the Court may otherwise see it as being in the best interest of the child (for example relocation, extra-curricular activities and so on)? After all, under the Family Law Act 1975 (Cth) the paramount consideration of the Court that is hearing a parenting dispute, is the best interest of the child.
So, in light of this child-centric Family Law Act, can a without prejudice negotiation or offer be disclosed to the Court? While there is no clear yes or no answer (to date) this is generally in the discretion of the Courts. At the moment, case law indicates that the moment a party is willing to trade on the welfare or interest of the child for a financial gain, the without prejudice element of such an offer or negotiation can be lifted and as such it can then be disclosed to the Court.
How far can “without prejudice” be without prejudice?
One example (and in our opinion a leading example) of when a Court has admitted into evidence a without prejudice offer, was in the matter of Hutchings and Clarke  FamCA 22.
This was a parenting matter that intersected with a financial portion when the father in a phone call to the mother has agreed to not seek custody over the child in exchange for the mother not pursuing the father for child support.
His Honour Justice Cohen, found that the phone call, while conceding that it was made on a without prejudice basis, was of such nature that it impacted on the Court’s ability to consider the entire evidence that would be vital in making parenting orders for the child, namely to account for the paramount consideration, being the best interest of the child principle. As such, so that the Court can meet its duty in taking into consideration this principle of the best interest of the child, it was necessary for His Honour to lift the without prejudice protective cover and include the particulars of the phone call into evidence. In consideration of this, His Honour then found that the father was willing to trade custody of the child for a financial advantage and thus awarded custody to the mother, even though it was the father that was the principal carer of the child after the parties have separated.
And while an appeal was lodged, Justice Cohen’s decision was ultimately upheld and the appeal was dismissed. In making the decision, their Honours Justices Nicholson, Ellis and Nygh re-affirmed the view of Justice Cohen that in considering the entire evidence before the Court, his Honour was correct in finding that the father failed to consider the child’s welfare in favour of his self-serving financial interest.
Engaging in negotiations is difficult, emotional and stressful. This is why you need to contact a solicitor that will understand your circumstances and fight for you. Here at Ann Legal our solicitors have years of experience with family law matters. Contact us today on (02) 8005 8025 to speak to one of our family lawyers.