Parenting disputes can be complex and emotionally charged, particularly when it comes to making decisions about the care of children. One tool that can help parties resolve their differences without going to court is the without prejudice offer. This type of offer is a proposal for resolving a dispute that is made without any admission of liability.
In the context of parenting disputes in family law, without prejudice offers can be a valuable tool for separated parents. By making a without prejudice offer, one parent can put forward a proposal for the care of children, such as arrangements for custody, visitation, or decision-making, without the risk of it being used as evidence if the matter proceeds to court. This creates a more relaxed negotiating environment and can lead to a quicker resolution.
Photo by: Beatriz Perez Moya
When making a without prejudice offer, it is important to approach the negotiation in good faith and with the intention of resolving the dispute. The offer should not be used as a means of bullying or intimidating the other parent.
It is important to note that without prejudice offers are not legally binding and can be withdrawn at any time. They also do not prevent parties from taking their disputes to court if a resolution cannot be reached. However, the mere fact that a without prejudice offer has been made can demonstrate to the court that the parties have made an effort to resolve their differences and can be seen as a positive step in the eyes of the court.
When Can Without Prejudice Offer be Disclosed to the Court?
While there is no clear 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.
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 [1993] 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.
Photo by: Gabrielle Henderson
At our law firm, serving Newcastle, the Hunter, and the Central Coast, we understand the benefits of without prejudice offers in the context of family law parenting disputes. Our experienced family lawyers are dedicated to helping our clients reach a resolution that works for everyone, especially the children involved.
The benefits of without prejudice offers in the context of family law parenting disputes cannot be overstated. By allowing parties to negotiate and settle their differences without the risk of the offer being used against them in court, without prejudice offers can help to speed up the resolution process and reduce the emotional toll on all parties involved, especially the children.
In conclusion, if you are facing a parenting dispute in the context of family law and are located in Newcastle, the Hunter, or the Central Coast, consider making a without prejudice offer. Our experienced family lawyers are here to assist you with all your needs and help you reach a resolution that works for everyone, especially the children.
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