Landmark Ruling: Appeals Court Cites Mediation Privacy Breach in Child Custody Reversal
Rubra & Potter [2023] FedCFamC1A 159 (18 September 2023)
In the case of Rubra & Potter [2023] FedCFamC1A 159, a pivotal custody decision was reversed due to a privacy breach in mediation. The primary judge had moved a child from her mother's care to her father's based on fabricated allegations of sexual abuse, which the judge believed were made by the mother. However, the Appeals Court found that the primary judge erred by using information from a mediation session, contravening the absolute non-admissibility rule outlined in the Family Law Act. As a result, the appeal was allowed, previous orders were set aside, and new parenting arrangements were established. This case underscores the importance of upholding the privacy and confidentiality of mediation proceedings in family law matters.
Facts
The case of Rubra & Potter [2023] FedCFamC1A 159 concerns an appeal from the decision of the primary judge in a family law matter involving allegations of child abuse. The parties to the case have one child who was born in 2018. The primary judge, based on his interpretation of the evidence and events, moved the child from her primary carer, the mother, to the care of the father who was granted sole parental responsibility for her. The child was not to see the mother at all until 2 September 2023 when a graduated regime for the child to spend time with the mother began.
The primary judge made these orders because he believed that the mother had fabricated allegations of sexual assault on the child by the father. This was considered by him to be child abuse within s 60CC(2A) of the Family Law Act 1975 (Cth). He concluded that this indicated that the mother was "not committed to [the child] having a meaningful relationship with the father".
The child had told several individuals that her father had touched her inappropriately. However, due to factors such as her young age, changing nature of allegations and manner in which she disclosed them, there were doubts about what actually occurred.
The primary judge found that these allegations were fabricated by the mother based on information given at a mediation session, which is barred from being used in court proceedings under s 10J(1) of Family Law Act 1975 (Cth). The Appeals Court found this use of information from mediation as a significant error leading to an unjust outcome.
The appeal was allowed based on this error and orders made by primary judge were set aside. New parenting orders were made by consent which saw the parties' child live with the mother and spend time with father. A costs certificate was granted to mother under Federal Proceedings (Costs) Act 1981 (Cth).
Issue:
The primary issue in the case of Rubra & Potter [2023] FedCFamC1A 159 pertains to the admissibility of information shared during a mediation in subsequent court proceedings. The primary judge had made significant use of this information in his decision-making process, which included a change of primary caregiver for the child involved, from the mother to the father. This was based on allegations of sexual abuse that the primary judge found to be fabricated by the mother.
Rule:
Under Section 10J(1) of the Family Law Act 1975 (Cth), anything said in the presence of a "family dispute resolution practitioner" during family dispute resolution is not admissible in any court. The exceptions to this are limited and do not include consent, unlike s 131 of the Evidence Act 1995 (Cth). This bar is absolute and not subject to any discretion.
Application:
The appellate judges found that the primary judge erred by using information from a mediation conducted by a "family dispute resolution practitioner". Despite both parties raising what occurred at the mediation in their affidavits, this did not negate the absolute bar on admissibility as set out by s 10J(1) of the Family Law Act 1975 (Cth).
In paragraph 21 of their judgment, the appellate judges stated: "The primary judge therefore used the information given at the mediation, the orders proposed by the mediator and the mother's refusal to agree to them in a very significant way. In effect, his Honour found that the mother invented the allegation of sexual abuse because the mediation was not going her way."
The appellate judges concluded that this was a material error which significantly affected the outcome. As such, they allowed for an appeal, set aside previous orders, and established new parenting orders by consent.
Conclusion:
In conclusion, this case provides an important lesson on respecting confidentiality and non-admissibility of mediation proceedings in court cases. Even when both parties raise what occurred during the mediation, the courts cannot use this information in their judgment. This is a clear and absolute rule under s 10J(1) of the Family Law Act 1975 (Cth), and it serves to protect the integrity of family dispute resolution processes.
This case also highlights the importance of legal counsel being aware of all relevant legislation and rules to prevent such errors occurring. It is incumbent on all parties, including independent children's lawyers, to ensure that they do not rely on information obtained in circumstances where its use would contravene legislative prohibitions. Failure to observe these provisions can result in significant consequences, as seen in this case.
