Without prejudice” offers in children’s matters
Dianne Caruso | Associate | Kim Wilson & Co Family Lawyers
A party to Family Court proceedings can make an offer to settle matters on either an “open” or a “without prejudice” basis. Generally an offer made on a “without prejudice” basis cannot be used for the purposes of the Court proceedings.
The reason for the “without prejudice” privilege is to encourage parties to attempt to settle matters between themselves via family dispute resolution (without Court involvement) without the risk that their offers may be used against them in Court if no agreement is reached.
A party may therefore wish to make a “without prejudice” offer to resolve a family law dispute.
The “without prejudice” privilege has been codified by rule 10.02 of the Family Law Rules 2004.
Importantly, an exception to the privilege attached to without prejudice offers is with respect to children’s matters. The public interest in encouraging parties to resolve their disputes can be inconsistent with the best interests of the children which, under the legislation, is the paramount consideration of the Court.
The Court has a discretion to include a without prejudice offer made in relation to children’s matters if it considers that the best interests of the child necessitate its inclusion. This was considered by Justice Crisford in the decision of S and K  FCWA 17. Her Honour states at paragraphs 27 to 32:
 It is very clear that a children’s jurisdiction is not a strictly adversarial jurisdiction. If this was ever in doubt the amendments made to the Family Law Act 1975 by the Family Law Amendment (Shared Parental Responsibility) Act 2006 will have laid that to rest.
 It goes without saying that it is important to preserve confidentiality in relation to offers. Full and frank negotiation needs to take place between parties so that matters may be resolved without the need for further court action. Often in children’s matters, the very avoidance of litigation can itself be in the best interests of the children. Whilst children are not parties to the proceedings, they are well and truly the subject of the proceedings. The principles governing these sorts of proceedings are very different to those relating to property matters.
 However, whilst it is important for negotiation that confidentially be preserved, especially in light of the rules of the Court, I am of the view that the preservation of confidentiality is not absolute. One of the main purposes of the Rules is that cases are resolved in a just manner. The Rules do not provide a complete code of the Court’s powers. Other powers are found in the provisions of various Acts, the Court’s inherent jurisdiction and the common law.
 Hutchings v Clarke may well stand for the proposition that the issue of legal professional privilege does not operate to exclude evidence if in the discretion of the trial Judge such evidence is required to be put before the Court in order to preserve the best interests of the child.
 There is no doubt that it is important to preserve confidentiality and to foster an environment that allows parties to negotiate without fear they will be compromised in an endeavour to settle matters. However, offers can be made for a number of reasons and the overarching principle is always the best interests of the child. It is not the sole consideration but it is the paramount one.
 The Court should not be precluded from obtaining information to ensure that the principle is met, especially in cases of such naked acrimony as this.