Miratos & Miratos (No 2) [2025] FedCFamC2F 1190 (12 September 2025)

Askey & Askey [2007] FamCA 548

Australian Competition and Consumer Commission (ACCC) v Australian Safeway Stores Pty Ltd (No 3) [2002] FCA 1294

Azzi & Ors v Volvo Car Australia Pty Ltd (Costs) [2007] NSWSC 375

Bruinsma v Menczer (1995) 40 NSWLR 716

Calderbank v Calderbank [1975] 3AII ER 33

Forsyth v Sinclair (No 2) [2010] VSCA 195

Harcourts WA Pty Ltd v Roy Weston Nominees Pty Ltd (No 6) [2016] FCA 1492

Harrington & Lowe (1996) 190 CLR 311, FLC 92-668

Hazelden's Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) VSCA 298

Miratos & Miratos [2025] FedCFamC2F 821

Kilich & Wood [2003] FamCA 629, FLC 93-169

Lenova & Lenova (Costs) FamCAFC 141, FLC 93-467

Marks, Kinross, McCullagh & Williamson v GIO Australia Holdings Ltd (No 2) (1996) 66 FCR 128

Nobrega v Roman Catholic Church (No 2) (1999) NSWCA 133

Pinot Nominees v the Commissioner of Taxation (2009) FCA 1508

Rajski & Anor v Tectran Corporation Pty Ltd & Ors [2003] NSWSC 476

Rodgers v Rodgers (1964) 114 CLR 608

Silver Fox & Ors v Leonards Pty Ltd (No 3) [2004] FCA 1570

Trask & Westlake [2015] FamCAFC 160

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

FURTHER TO THE ORDERS OF 17 JUNE 2025 AS TO "DEFAULT OF PAYMENT" PROVISIONS:

1. That in the event the Husband defaults in the making of the whole of the First Payment and/or the whole of the Second Payment by 17 December 2025 (Default Date) in accordance with paragraph 2 of the Final Orders, the following orders shall apply.
2. Within 14 days of the Default Date, the Husband personally and in his capacity as the Director of J Pty Ltd do all acts and things, sign all documents as may be necessary and give all necessary instructions to sell the parcels of land comprising the fruit orchard more particularly known as Certificate of Titles Volume ... Folio ... and Volume ... Folio ... (B Street, Town C Property) being part of the real property situate at and known as B Street, Town C in the State of Victoria, being the land described at paragraph 1(a) of the Final Orders (B Street Sale).
3. That for the purposes of the B Street Sale:

(a) The selling agent and the conveyancing lawyers to have the conduct of the sale shall be appointed by the parties jointly, AND in default of agreement as to the selling agent or the conveyancing lawyer, the Husband is to propose three names to the Wife within 30 days of the Default Date and the Wife is to select one within seven days thereafter;

(b) The parties shall accept the reasonable recommendations of the selling agent as to the appropriate manner of sale, the preparation of the B Street Property for sale, sale listing arrangements, the settlement period and/or reserve price in default of agreement between them;

(c) That the Husband pay or cause to be paid any sale preparation costs.

(d) The proceeds of the sale shall be applied in the following manner and priority:

(i) First, to pay all costs, commissions and expenses of the sale;

(ii) Second, to discharge any encumbrances upon the title(s) comprising the B Street Property, including but not limited to any mortgage(s) in favour of National Australia Bank or any other lender save and except any caveat lodged to secure the legal fees of either party AND each party do all acts and things, contemporaneously with the settlement of the B Street Sale to discharge any charge and cause the caveat to be removed at their own expense;

(iii) Third, to pay to the Wife so much of the First Payment and the Second Payment as then remains outstanding together with interest thereon pursuant to Rule 10.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules (2021) (Rules) noting that such payment is made by the Husband (as sole beneficiary of The Miratos Family Unit Trust) to the Wife calculated from the default date;

(iv) Fourth, to reimburse the Husband for the sale preparation costs paid by him; and

(v) Fifth, to pay any and all capital gains tax payable by J Pty Ltd (if any), when assessed and due; and

(vi) Finally, to pay the remaining balance to the Husband (if any).

1. That in the event the whole of the First Payment and the whole of the Second Payment (together with any interest thereon) is not paid contemporaneously with the settlement of the B Street Sale, then within 30 days from the settlement of the B Street Sale the Husband personally and in his capacity as the director of H Pty Ltd further do all things and sign all documents and give all necessary instructions as may be necessary to sell the whole of the property situate at and known as D Street, Town C in the state of Victoria (D Street) being the land described at paragraph 1(c) of the final orders (D Street, Town C Sale).
2. That for the purposes of the D Street Sale:

(a) The selling agent and the conveyancing lawyers to have the conduct of the sale shall be appointed by the parties jointly AND in default of agreement as to the selling agent or the conveyancing lawyer, the Husband is to propose three names to the Wife within 30 days of the Default Date if the B Street Property is not to be sold or 14 days of the settlement of the B Street Sale, and the Wife is to select one within a seven days thereafter;

(b) The parties shall accept the reasonable recommendations of the selling agent as to the appropriate manner of sale, the preparation of the property for sale, sale listing arrangements, the settlement period and/or reserve price in default of agreement between them;

(c) The parties do all acts and things to obtain the early release of the deposit money paid by the purchaser/s to be paid to the Wife to her nominated bank account to pay part of the First Payment and/or the Second Payment;

(d) That the Husband pay or cause to be paid any sale preparation costs; and

(e) The proceeds of the sale shall be applied in the following manner and priority:

(i) First, to pay all costs, commissions and expenses of the sale;

(ii) Second, to discharge any encumbrances upon the title(s) comprising the D Street Property save and except any caveat lodged to secure the legal fees of either party AND each party do all acts and things, contemporaneously with the settlement of the D Street Sale to discharge any charge and cause the caveat to be removed at their own expense;

(iii) Third, to pay to the Wife so much of the First Payment and the Second Payment as then remains outstanding together with interest thereon pursuant to Rule 10.17 of the Rules, noting that such payment is made by the Husband (as sole beneficiary of the Mr Miratos Property Trust) to the Wife

(iv) Fourth, to reimburse the Husband for the sale preparation costs paid by him;

(v) Fifth, to pay any capital gains tax payable by H Pty Ltd (if any) when assessed and due; and

(vi) Finally, to pay the remaining balance to the Husband (if any).

(a) Without being obligated to provide details of negotiations with any bank or banking institution or documents relating thereto, of the progress of any application for finance to meet the First Payment and/or the Second Payment and/or the Total Payment (as defined in the 17 June 2025 Final Orders) and/or any rejection or refusal of any such application; and

(b) Without being obligated to provide details of negotiations with any purchaser or documents relating thereto, of the progress of any sale of the B Street Property, D Street Property, the Farming Property and/or the Retail Business Property by private sale or otherwise.

1. The Husband may elect to effect the D Street Sale prior to the B Street Sale upon written notice to the Wife no later than three business days after the Default Date and in the event of him exercising such election, the provisions of these orders with respect to the B Street Sale shall take effect (if required) after settlement of the D Street Sale.
2. In the event the B Street Property is sold, and contemporaneously with the settlement of the B Street Sale, the Wife withdraw at her expense any and all caveats lodged by her (or upon her behalf) on the title(s) comprising the B Street Property.
3. In the event D Street Property is sold, and contemporaneously with the settlement of the D Street Sale, the Wife withdraw at her expense any and all caveats lodged by her (or upon her behalf) on the title(s) comprising D Street Property.
4. Upon payment of the whole of the First Payment and the Second Payment to the Wife (together with any interest thereon), the Wife further withdraw at her expense any and all caveats lodged by her (or on her behalf) upon any real property held by the Husband and/or any company or trust comprised of the Miratos Group.
5. The parties each be and are hereby restrained from further encumbering any real property held by either of them or any company or trust comprised in the Miratos Group, save and except for the purposes of permitting the Husband and/or company or trust comprised in the Miratos Group to procure any necessary finance upon properties for the purposes of procuring the funds required to effect the First Payment and/or the Second Payment.
6. The parties be authorised to provide a copy of these Orders to the selling agent and conveyancing lawyer.
7. Each party do all acts and things reasonably required by the other including the signing or execution of all necessary documents to give effect to the provisions of these Orders within the specified timeframe and if there is no specified timeframe, within 14 days of being requested to do so.
8. For the purposes of these Orders, 'sale preparation costs' means the money spent (if any) by the Husband in advance of settlement for real estate agent commissions, marketing expenses and/or conveyancing fees and does not include the removal of any part of the B Street and/or stock.

1. The Husband and Wife have general liberty to apply in relation to the implementation and/or the enforcement of these orders on short notice by email to the Chambers of Judge O'Shannessy at ...@..., including the terms and conditions of the B Street Sale and/or the D Street Sale and any other sale or order required in the event that those sales do not enable all of the total payment, together with the interest to be paid to the Wife, in default of agreement between the parties.

1. All applications for costs are otherwise dismissed.
2. Reasons for costs be and are reserved.

1. The Husband does not believe that any capital gains tax would be payable by J Pty Ltd upon the sale of the B Street Property as that property was acquired prior to 1985.

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. In the matter of Miratos, I heard contested section 79 of the Family Law Act 1975 (Cth) ('the Act') proceedings over 29 July 2024 to 1 August 2024. I reserved my decision and reasons. I made final orders and delivered reasons on 17 June 2025 ('the reasons').[1] I had ordered the parties to confer and bring in minutes of necessary provisions dealing with what assets should be sold if the property settlement was not paid on time ('the default provisions'). Agreement was not reached and so the matter came before me again on 20 August 2025. In the mean time an application for costs was of part of the proceedings was made and on the same day I also herd the costs application.
2. I heard the matter over the morning and reserved my decision and reasons to 3.30pm that afternoon, intending to deliver oral reasons. Time taken to deal with another matter listed that day meant I only got to orders and reasons at about 4.15pm. I made the orders relating to the default provisions and dismissed the applications for costs and reserved my reasons. These are those reasons.

1. In summary I found the asset pool to be a total of $6,880,550, net of debt and including superannuation and that of those total assets, the Wife already had or would keep assets including part property settlements of a total of $307,925.[2] The final property orders I made included:

1. On or before 4.00 pm on 17 December 2025 ('the Date') the Husband pay to the Wife the total sum of $1,790,643.00 ('the Total Payment') by way of two payments as follows:

(a) on or before 4.00 pm on 17 November 2025, the sum of $100,000.00 ('the First Payment'); and > > (b) on or before 4.00 pm on 17 December 2025 the sum of $1,690,643.00 ('the Second Payment'); and > > (c) no later than contemporaneously with the First Payment, the Wife notify the Husband, in writing, of her intended time and date of vacating the [FMH]; and > > (d) no later than contemporaneously with the payment of the Total Payment, the Wife:

(i) vacate the [FMH]; and

(ii) notify the Husband in writing that she has done so; and

(iii) do all things, sign all documents and give all necessary instructions required to withdraw at her expense any and all caveats lodged by her or on her behalf upon the title to [the Farm].

1. The effect of those orders was that the Wife would continue to occupy the Former Matrimonial Home ('FMH') situated on or nearby the property described in the reasons as "the Farm" until the payment of the total payment, and at that time the extant spousal maintenance order of $300 per to the wife be discharged. The Husband was otherwise to retain his interests in the Farm property and the entities associated with it.
2. For the reasons set out in Miratos, I had ordered that the parties were to confer as to the default provisions and unless agreed in writing the parties were to file and serve the "default provisions" that he/she sought. Any application for costs was to be made by short written submissions.
3. The parties were unable to agree to the provisions to apply in the event that the Husband defaulted in the total payment. The Husband provided a detailed minute of the default provisions he sought. The Wife responded by providing a helpful "marked up" (changes tracked) version of the provisions the Husband sought.

1. Experienced counsel made further sensible agreements that were announced to me at the start of the costs and default provisions hearing on 20 August 2025. The scheme of the default provisions that each party pressed was that if a default sale was necessary then regardless of whether the sale achieved more or less than that contemplated in previously agreed valuations and regardless of the extent of sale expenses and matters like Capital Gains Tax ('CGT'), the Wife should receive a fixed sum and penalty interest as calculated. Hence it was common ground that what could be described as "rise and fall" provisions or the formula approach in decisions like Trask & Westlake [2015] FamCAFC 160 ('Trask') would not be engaged. Hence, I was told, in the event of default, the costs of preparation of sale would be borne by the Husband. This agreement necessitated some minor alterations to the form of the default provision orders that were submitted by each party. I have endeavoured to follow the scheme of the sensible agreement between the parties as I was told of it in making minor variations to the form of the orders submitted.
2. The agreed scheme of the orders was that in default of the Total Payment, what was described as the 'B Street Property' being part of the Farm, should be sold first and if that did not realise sufficient to satisfy the total payment to the Wife, then the FMH should be sold next. I note that unlike the Farm property or properties, the FMH was unencumbered.
3. The major controversies about the form of the default provisions, described conceptually, included the following:

(1) Whether in proceeding with the sale of the first to be sold property (the B Street property), the Husband should ensure there was a separate water license for that property;

(2) Whether prior to the actual sale of the first to be sold property (the B Street property), the Husband should ensure the release of that property from any existing mortgage to the bank;

(3) Whether prior to the actual sale of the first to be sold (the B Street Property), the Husband ensure his solicitors remove the caveat securing their costs;

(4) Whether, in the event the Husband had not satisfied the three requirements described above, that the first to be sold property should then be the FMH;

(5) Whether the default provisions should further provide for the sale of the property that can be described as 'the Eastern most block' of the Farm, in the event that the sales of the B Street block and the FMH had not raised sufficient funds to meet the Wife's fixed property settlement;

(6) Whether the default provisions should further provide for the sale of the property that was described as 'the Improvements block' of the Farm, in the event that the sales of the B Street block, the FMH and the Eastern most block had not raised sufficient funds to meet the Wife's fixed property settlement;

(7) Whether, pending the receipt of the property settlement, the Husband should be restrained from accepting any offer to purchase any part of the farm required to be sold in the default provisions without the prior written consent of the Wife;

(8) Whether the default orders should authorise the Wife's solicitors to execute any document in the Husband's name pursuant to section 106A of the Act.

(9) Whether the Husband should be ordered to meet all payments in regard to the existing mortgages over the Farm pending receipt of the property settlement.

1. I will deal with the disputes described at 1-4 above together.
2. The Husband's case at final hearing and in his submissions on the costs application, was that his first preference and intention is to obtain sufficient further borrowings to meet the Wife's property settlement. I am not satisfied that expressed intention is other than bone fide. The result of his applications and negotiations for finance, that I infer are underway, will determine whether his intention was realistic or not. That circumstance is the point of why default provisions are required.
3. I was not satisfied that the provisions pressed are well-founded in regard to need or practicality. I did not include those provisions in the orders that I made. As to the water license controversy, the Wife's proposed order assumed that a separate water licence for the B Street property was both possible and achievable within the timeframe contemplated by the default sale orders. There was no such evidence and I was not prepared to assume or infer such an arrangement.
4. I was not prepared to order that the first property to be sold in default of the payment should be unencumbered from the commencement of the sale process rather than what I am satisfied is the usual business and conveyancing practice of encumbrances, including discharges of mortgages, being dealt with at settlement after a concluded sale, not beforehand. As discussed with counsel, I am satisfied that dozens of properties are sold in the state of Victoria each weekend with existing mortgage encumbrances described in the contract of sale/section 32 statement. Further the contentions of the Wife in support of these provisions did not satisfactorily deal with the multiplicity of potential circumstances as the Husband applies to and negotiates with, the banks to obtain the funding he seeks.
5. If the Husband cannot borrow sufficient funds to meet the Wife's property settlement, it may be that by a combination of the B Street property sale proceeds and some further borrowing or reorganising of mortgage debt on the other parts of the Farm, that he will be able to meet the property settlement. As discussed with counsel, I am satisfied from ordinary banking and security practice that it is unlikely that individual mortgages relate to particular properties without any cross collateralisation when the same bank is the mortgagee of all of the different parts/titles of the farm. It is likely that the mortgage debt encumbering the B Street property is part of "all monies" debtor obligations to the bank, cross collateralised or covering all of the different parts/titles of the farm. Hence, it is possible, and even sufficiently likely that the possibility would have to be excluded, that to make an order that the Husband was to effectively unencumber the B Street property before its sale and before settlement proceeds are received would mean that all of the secured debt over all of the different parts of the Farm would need to be discharged. That is not practical and likely to be impossible.
6. I take into account that the Wife's position in the default provisions pressed by her, accommodates or acquiesces in the Husband's position of (the B Street property being the first property to be sold in the event of default) comes with, and is inclusive of, the further conditions or scheme pressed in points 1-4 above. However I am satisfied, including from the evidence given in the final hearing, that if push comes to shove and the Husband defaults then it is just and equitable that the B Street property is the first property to be sold in the forced sale of the default provisions, and if insufficient, followed by the sale of the FMH.

1. It is convenient to deal with the contentions or schemes described at numbers 5-6 above together. On the evidence before me, taking into account the extent of the indebtedness of the farm, it is conceivable that no funds will be available to meet the property settlement from the default sale of the B Street property. It is conceivable that only some funds will be available from that default sale. The agreed value at final hearing following independent valuation of the FMH, which is a separate title to the other parts of the farm, is significantly in excess of the Total Payment. I accept the point made by the Wife's counsel that a valuation, and an agreed valuation for the purpose of a final hearing, is not a guarantee of an achieved market price some time later. Nonetheless and looking at the worst outcome from the default sale of the B Street property, that is that no part of the proceeds of sale would be available to the Husband to meet the Wife's property settlement, it is likely that the net proceeds of the FMH property, being unencumbered, would be sufficient to meet the Wife's property settlement.
2. The controversy was whether provisions should be made in these orders for two further sales to ensure the Wife's property settlement can be met. It is possible that the sale of a third part of the farm and indeed the last/fourth part of the Farm may need to be sold to meet the Wife's property settlement. However on the evidence that is unlikely and the most likely outcome is that the B Street property sale, whether in combination with further borrowings or not would be sufficient to meet the Wife's property settlement. If that does not come to pass, on the evidence, it is likely that the further sale of the FMH would, either by itself or with combination of any proceeds or borrowing around the sale of the B Street property, raise sufficient to meet the Wife's property settlement.
3. If that does not come to pass the parties have liberty to apply as to what further orders should be made to ensure the Wife's property settlement is met and the Wife accommodated.[3] In the meantime penalty interest would run.
4. In all of those circumstances, I am not satisfied it is either necessary, practical or just and equitable to make further orders that assume that the Husband will not be able to borrow sufficient funds to meet the property settlement without a default sale and that default sales of the B Street property and/or the FMH would not raise sufficient funds to meet the property settlement. For those reasons I did not make the further orders pressed in regard to default sales of the Eastern most block and the Improvements block.

1. Controversy number 7 (listed above) is whether the Husband should be restrained from accepting an offer for any property without the consent of the Wife. The parties have a deeply conflictual and troubling relationship and neither trusts the other a jot. Whether or not it was intended as such, this provision as pressed would give a veto power to the Wife over any sale and the potential for trouble arising from that is abundant. I am satisfied that in broad parameters, the Wife should be kept informed of the progress of Husband's first intended position of borrowing further funds to meet the property settlement, and if he can't so borrow, then she should be kept informed, in broad parameters, of the progress or lack thereof of any default sale. But disclosure of documents and provision of information and the expense to each of the parties in either pressing for the information, or providing it, has vexed the parties in these proceedings. One of the purposes of the final orders is to end that mutually vexing process. Hence I am not satisfied that the requirement to keep the Wife broadly informed should, without further order of the court, also require detailed explanation or answers and disclosure of documents relating to communications between potential financiers and/or purchasers.
2. Hence I did not make the order as the Wife pressed but rather for there to be broad information provided.

1. The Wife pressed for a section 106A of the Family Law Act 1975 (Cth) order that gave her solicitors the authority to execute any document necessary to give effect to these orders in the event the husband defaults. That begs the question of: in default according to who? The Wife? Her solicitors? Or only if it is agreed he is in default?
2. Section 106A of the Act provides as follows:

Section 106A Execution of instruments by order of court

(1) If:

(a) an order under this Act had directed a person to execute a deed or instrument; and

(b) that person has refused or neglected to comply with the direction or, for any other reason, the court considers it necessary to exercise the powers of the court under this subsection;

1. The form of the order pressed, and such orders are frequently made by consent but empowering a Registrar of the Court to execute, contemplates that the order can be made at this time anticipating a possible refusal or neglect to comply with the deed or instrument. I accept this section should be deployed liberally given its remedial purpose. But that liberal engagement must be 'judicially.'
2. The power comes in two parts. First, set out in (a) means an order has to have already directed a person to execute a deed or instrument. The second part, (b), has two bits or sub sections. The first of those sub sections of (b), applying the plain meaning of the words of the sub section, means the power arises after the person has "refused or neglected to comply". As to the second sub section of (b), "or for any other reason the court considers it necessary", it is very wide but the power must still be exercised judicially, that is there must be some circumstance/s that would justify or explain the exercise of the power. That subsection might include contemplation of an anticipated or likely future "refusal or neglect" or a lack of capacity that has arisen since the order. And the recalcitrant party or person affected, would ordinarily need to be given procedural fairness, including what the justifying circumstance is said to be.
3. Hence the power arises to remedy an existing or, if justified, an actually anticipated default. But it is not a power to be used prophylactically or just in case or just because it seems like a good idea. There is no evidence here of any intended "refusal of neglect" or of an anticipated, or likely, "refusal or neglect" on the part of the Husband. A general mistrust, however strongly felt, or mere possibility, is unlikely to be sufficient. It is not in this case. Further, I am satisfied that ordinarily the person endowed with the section 106A power should be someone who can be seen to be acting reliably and responsibly from the perspective of each of the parties, not just one of them. If a need for a 106A order does arise there is liberty to apply.
4. For those reasons I did not make the section 106A order pressed.

1. Despite many years of litigation and deep distrust between the parties, there has not been an order that the Husband must attend to payment of all mortgages as and when they fall due. There was no evidence that the Husband has defaulted on such obligations and no evidence that he would, or intends to, default. Further, whilst attempting to negotiate with the bank, it is very much in his interest to comply with his existing obligations to the extent that it would keep the bank happy. Injunctions are not made to ease the anxiety of a party. In this case in regards to this injunction in this circumstance, I am not satisfied that there is an arguable case made out as to the risk of the event of the injunction is to protect against occurring and I am not satisfied that the balance of convenience favours the making of such injunction.
2. For those reasons I did not make the injunction as pressed.

1. On 11 July 2025 the Husband made an application for costs by written submissions and the Wife responded on 25 July 2025. The Husband's submissions referred to what were alleged to be oral offers to settle made within the mediation that had occurred between the parties on 30 January 2024. When issue was taken with the accuracy of the assertions of the oral offers, the Husband's solicitor served an affidavit corroborating the assertions within the written submissions. The Wife's solicitors objected to the filing of that affidavit and in that context, I then listed the matter for hearing as to costs and as to the default provisions at 8.45am on 20 August 2025 ('the costs hearing'). Both counsel who had appeared at the Final Hearing appeared on the costs hearing.

1. The parties made written submissions on the basis that section 114UB of the Act applied to the costs decision. Section 114UB came into operation on 10 June 2025 by reason of the Family Law Amendment Act 2024. Section 114UB is almost the same as the provisions of section 117 of the Act that had applied until 10 June 2025. For the purpose of this case there is no material difference between section 117 as it was prior to 10 June 2025 and the "new" provisions as to costs now contained in section 114UB. However, by reason of section 15 of Schedule 4, the transitional provisions of the Family Law Amendment Act 2024, and because the final hearing of this matter had commenced before 10 June 2025, section 117 (as it was) applied to the determination of costs, not section 114UB. That provision is:

15 Application of amendments relating to costs[4]

The amendments of the Family Law Act 1975 made by Divisions 1 and 2 of this Part apply in relation to the following proceedings:

(a) proceedings instituted on or after the day this Division commences;

(b) proceedings instituted before, and not finally determined before, the day this Division commences, other than proceedings in respect of which a final hearing has commenced before that day.

1. I repeat, there was no material difference[5] in regards to this case between the two provisions.
2. This costs dispute is governed by section 117 of the Act as it was prior to 10 June 2025 and section 117C as it was and remains (save it now refers to section 114UB(2) rather and section 117(2) and section 117). Those provisions are as follows:

(1) Subject to subsection (2), subsection 102QAB(6) and sections 117AA and 117AC, each party to proceedings under this Act must bear the party's own costs.

(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:

(a) the financial circumstances of each of the parties to the proceedings;

(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;

(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

(g) such other matters as the court considers relevant.

...

Section 117C Offers of settlement

...

(2) If:

(a) a party to proceedings to which this section applies makes an offer to the other party to the proceedings to settle the proceedings; and

(b) the offer is made in accordance with any applicable Rules of Court;

the terms of the offer must not be disclosed to the court in which the proceedings are being heard except for the purposes of the consideration by the court of whether it should make an order as to costs under subsection 117(2) and the terms of any such order.

1. In the event I am wrong and the costs provisions of this hearing are not governed by section 117 and section 117C but are governed by section 114UB and ("the new") section 117C, those provisions are as follows:

(1) Subject to subsection (2) of this section, subsection 102QAB(6) and sections 114UD and 114UE, each party to proceedings under this Act is to bear the party's own costs.

(2) If, in proceedings under this Act, the court is of the opinion that there are circumstances that justify it in doing so, the court may, subject to subsection (3) of this section, sections 114UC and 114UD and the applicable Rules of Court, make any order for costs and security for costs that the court considers just, whether by way of interlocutory order or otherwise.

(3) In considering what costs order (if any) should be made, the court must have regard to the following:

(a) the financial circumstances of each party to the proceedings;

(b) whether any party to the proceedings is receiving assistance by way of legal aid in respect of the proceedings and, if so, the terms of the grant of the assistance to that party;

(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting paragraphs (a) and (b), the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters, and in relation to their duty of disclosure under subsection 71B(1), 90RI(1) or 90YJA(1);

(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;

(f) whether a party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer;

(g) such other matters as the court considers relevant.

(4) A party to the proceedings may make an application for costs:

(a) at any stage during the proceedings; or

(b) within 28 days after the final order in the proceedings is made.

(5) The court may order that a party is entitled to costs:

(a) of a specific amount; or

(b) as assessed on a particular basis (for example, party and party, solicitor and client or indemnity); or

(c) to be calculated in accordance with the method stated in the order; or

(d) for part of the proceedings, or part of an amount assessed in accordance with the applicable Rules of Court.

(6) If the court makes a costs order but does not specify the method for the calculation of the costs, the costs are to be assessed on a party and party basis.

(7) Subject to subsection (3), the court may make a costs order in favour of, or against, a party to the proceedings regardless of the degree to which the party has been successful in the proceedings.

...

Section 117C Offers of settlement

(1) This section applies to proceedings under this Act other than the following proceedings:

(a) proceedings under Part VI;

(b) proceedings under Division 6, 9 or 13 of Part VII;

(c) proceedings to enforce a decree or injunction made under Division 6, 9 or 13 of Part VII.

(a) a party to proceedings to which this section applies makes an offer to the other party to the proceedings to settle the proceedings; and

(b) the offer is made in accordance with any applicable Rules of Court;

the terms of the offer must not be disclosed to the court in which the proceedings are being heard except for the purposes of the consideration by the court of whether it should make an order as to costs under subsection 114UB(2) and the terms of any such order.

1. Apart from the provisions of the Act, the Judge made rules[6] relating to costs also apply. The Judge made rules are contained in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 ('the Rules') and relevant parts of the Rules include the following:

(1) A party may make an offer to another party to settle all or part of a proceeding by serving on the other party an offer to settle at any time before the court makes an order disposing of the proceeding.

(2) A party may make an offer to settle all or part of an appeal by serving on the other party an offer to settle at any time before the court makes an order disposing of the appeal.

(a) must be in writing; and

(b) must not be filed.

Rule 4.07 Open and without prejudice offers

(1) An offer to settle is made without prejudice (a without prejudice offer) unless the offer states that it is an open offer.

(2) A party must not mention the fact that a without prejudice offer has been made, or the terms of the offer:

(a) in any document filed; or

(b) at a hearing or trial.

(3) If a party makes an open offer, any party may disclose the facts and terms of the offer to other parties and the court.

(a) an application relating to an offer; or

(b) an application for costs.

...

Rule 4.11 Compulsory offer to settle

(1) This rule applies to a property proceeding.

(2) Each party must make a genuine offer to settle to all other parties within:

(a) 28 days after a conciliation conference or mediation; or

(b) if no conciliation conference or mediation has been held or is to be held--28 days after the first court date; or

(c) such further time as ordered by the court.

(3) The offer to settle must state that it is made under this Division.

...

1. As is readily apparent, the costs provisions of the Act (whether section 117 or section 114UB) and the offers in writing provisions of the Rules (authorised by the Act) are entirely consistent and direct attention to the fact of, and content of, offers in writing. No attention is directed by the Act or the Rules to oral offers or anything said within a mediation.
2. The Husband relied upon sections 114UB(3)(c) ("conduct of the parties to the proceedings...") and (e) ("wholly unsuccessful...") and (g) ("other matters as the court considers relevant"). The subsection (g) "other matters" were the oral offers within the mediation.
3. The Husband sought indemnity costs and, alternatively, party/party costs, from the day after the parties' mediation until the day orders were made. Indemnity costs were sought on the basis of an "imprudent refusal of an offer to compromise".[7]

1. Many, many matters were in dispute between the parties, and I set out only some of them to contextualise the costs application.

1. The matrimonial pool of assets to be taken into account was net of debt, $6,880,550. Until just before the hearing, the Wife contended that the pool of assets was about another $790,000 and that further $790,000 was made up of assets in the Husband's hands and to be retained by him. On the morning of the hearing I was advised that the parties agreed that I should proceed on the basis that the pool was agreed to be $6,880,550 and I did so. It was not disputed of the $6,880,550 that "the Wife's keep" was $307,925.

The section 79(4)(a), (b) & (c) percentage finding dispute

1. The Husband contended that I should find the respective contributions were 85% to him and 15% to the Wife. The Wife contended that contribution should be regarded as equal. That is, the controversy at the second stage of the then orthodox four step analysis of the section 79 dispute, was whether an 85/15 or 50/50 contribution finding should be made. A remarkable disparity.

The section 75(2) and just and equitable dispute

1. The Husband contended that in the circumstance of his 85/15 position, such a disparity between the parties at the conclusion of the second "contribution" step, warranted a further 5% adjustment pursuant to section 75(2) in the Wife's favour: that is a total/final division in his favour of 80/20. In the context of pressing for a finding of equality of contribution, the Wife did not press for any section 75(2) adjustment in favour of either party. That left the dispute between the parties as to whether their net assets should be divided 80/20 or 50/50. A remarkable disparity.

1. The case the Husband pressed at trial was that the Wife should be ordered to immediately leave the FMH that she had occupied to the exclusion of the Husband since an intervention order removing the Husband from the home was imposed on him by the Magistrates Court of Victoria in mid-2020: that is almost four years before the first day of the final hearing. The Wife contended that she should vacate the FMH when she received the property settlement that she pressed for.
2. The Wife contended that the Husband had long enough to work out how to fund her property settlement and how to organise it in advance of the trial, and that so of the different parts of the farming enterprise should be sold with her to have the sole conduct of the sale and the sale process to commence within 45 days of final decision/orders.
3. Further, the Wife sought an immediate injunction that would facilitate borrowing by her secured upon the Farm properties to enable an immediate payment to her lawyers. The Husband opposed that application.

1. I found that in all the circumstances, contribution should be regarded as 72.5/27.5 in the Husband's favour, and that there should be a 3% further adjustment in the Wife's favour on account of the matters described in section 75(2) of the Act. I found that the Husband should have a further six months to organise and fund the property settlement before penalty intertest and default provisions would apply, not 12 months as he sought. I found that the Wife should be entitled to remain in the FMH until she has received the whole of the property settlement, that is she should not be required to move out immediately. I did not accept that it was just and equitable that the Wife would have the sole conduct of any sale or that there should be an automatic sale of all of the farm assets to commence 45 days after the final orders.

1. It is convenient to refer to and repeat [106] of the reasons delivered 17 June 2025.
   1. In affidavit material each party made many, and serious, allegations against the other, including alcohol abuse, allegations of very poor step-parenting of the other's children and of family violence to each other and the children. By agreement on the first day of the hearing, I was told of an arrangement between the parties, brokered by their counsel, that the negative and highly critical allegations each party, and his or her witnesses, made against the other in affidavits of evidence in chief ('the allegations') were not relied upon and should not be determined by the Court. I accepted that agreement. I expect that had the allegations been pursued, the matter would have likely taken some 3 or 4 days more to hear.
2. The Husband's application for costs relied upon circumstances that were said to displace the general, or starting position of each party bearing their own costs as follows:
   • (c)[8] the conduct of the Wife in the proceedings, as recited above, in running a case that was to compel a sale of all of the Farm rather than give the Husband the opportunity to fund the settlement to her and to run a case that sought an equal division of the assets
   • (e)[9] that the Wife had been wholly unsuccessful in the proceedings in seeking a property settlement equivalent to an equal division of the parties property and in seeking to prevent the Husband having the opportunity to raise the property settlement, but instead sought a sale of the entire farm.
   • (g)[10] such other matters as the court considers relevant including the oral offers made within mediation discussed above.
3. The Husband submitted that the matters relevant to section 114UB(3)(c) & (e) of the Act commanded an order for costs whether or not the oral offers within the mediation were admissible or given any significant weight.
4. The Husband relied upon the public policy consideration that the parties should take seriously genuine offers to the other and so avoid the cost, trouble and delay of litigation. It was said that the Wife had unreasonably put herself and the Husband to much trouble and expense by the manner in which she conducted her case, and her failure to consider seriously the oral offers in mediation.

1. The Wife sought that the Husband's applications for costs be dismissed and that the Husband pay the Wife's costs of responding to his application for costs.
2. The Wife submitted that the Husband did not make any offer in writing as he was compelled to do by the rules. This was said to disentitle the Husband to bring a costs application at all. Further, the Wife had made a detailed written offer to the Husband on 2 May 2024 and that was said to be in compliance with the Rules. If one squints his or her eyes and looks broadly at the rules, the Wife's offer in writing made three months after the end of the mediation, rather than 28 days after could be regarded as more or less in compliance with the Rules and certainly far closer to compliance than the Husband's failure to make any offer in writing at all.
3. The principle submission of counsel for the Wife in regard to the oral offers, was that the oral offers were inadmissible because, addressing the terms of section 131(2)(h) of the Evidence Act, the offers to the extent the Court could discern what was actually offered, were not capable of acceptance as would bring about an agreement capable of being put into orders and putting an end to proceedings. The Wife's submissions included the following:
   1. Rule 1.33 of the Rules states if a party does not comply with these Rules the court may "dismiss all or part of the proceeding", "set aside a step taken or an order made", "order costs" or "make any other order the court considers necessary, having regard to the overarching purpose of these Rules". Rule 1.33 notes "subrule does not limit the power of the court. It is an expectation that a non-defaulting party will minimise any loss."
   2. The need for an offer to be in writing is clear and demonstrated by this very application.
   3. The Husband seeks to rely upon verbal communications made to the Wife at mediation by invoking the provisions of the Evidence Act 1995 (Cth) (the Evidence Act).
   4. It is clear under Section 8 of the Evidence Act, the Evidence "Act does not affect the operation of the provisions of any other Act", subject to exceptions that do not apply here.

...

1. The basis upon which the Husband advances his position in this application namely by making assertions about verbal statements (rather than affidavits) is yet another reason for the requirement that offers be in writing.
2. This principle applies even more strongly by reason of discussions in mediations often taking place on the basis of "If I do this, would you do that" communications.

1. It was submitted that the Court could not determine what terms were offered, the Wife denying that any terms were clearly and unequivocally communicated to her, and this obvious fact demonstrated the need for offers to be in writing to be "relevant" for the provisions of section 131(2)(h). It was said that putting the alleged oral statements within the mediation at their highest, they were merely a step towards a settlement without the necessary further significant steps needed to get the parties to settlement. Hence it was submitted, they were both inadmissible and if admissible, should have very little weight.
2. As to whether any party had been wholly unsuccessful, the Wife submitted that she had not been wholly unsuccessful as she received a property settlement that was 10.5% more of the agreed pool that the Husband sought in his Amended Initiating Application filed 7 January 2024 and as he pressed all the way to the conclusion of the final hearing six months later. And, the Wife had or would, by the conclusion of the costs and default provisions hearing, achieved default provisions capable of providing her with certainty as to when she was to receive her entitlement. Further, the Wife had achieved orders for a payment in six months, not 12 months, as sought by the Husband. Further, she had retained the use and occupation of the FMH and continued spousal maintenance until the total payment. Hence, the Husband had not achieved her immediate eviction from the FMH and a hiatus until payment of the property settlement of a further year. Hence it was put that the Wife had not been wholly unsuccessful.
3. The failure of the Husband to make an offer in writing at all, or as provided in the Rules, was said to be significant apart from compliance with the Rules. It was asserted that the Husband had not made a certain and capable of being accepted offer in writing because "the Huband was in no position to make any specific offer because he had no idea how to fund any settlement that might have flowed from such an offer being accepted by the Wife". It was submitted that the Husband was "unable to reduce any communications in writing or in other words, he was never in a position to articulate any offer capable of acceptance". The evidence raises the possibility but I am satisfied of that fact.
4. Some modest criticisms of the Husband's case in the primary judgment were also relied upon.

1. In considering whether the circumstances displace the starting position of each party bearing their own costs, the financial circumstances of the parties must be considered.[11] The parties' financial circumstances were that the wife would receive a further payment of $1,790,643 (and retain real and notional assets to the value of approximately $307,925) and hence, I infer, could afford to pay the costs of the Husband. The Husband would retain net of debt, equity and assets, including a small degree of notional assets (part property payments to the Husband and Wife had been expended on legal fees) of about $4.78 million and I infer could afford to pay his own legal fees
2. These matters neither contended for, or against, departure from the starting position of each party bearing their own costs.

Section 117(2A)(c) & (e) - Conduct of the parties & whether wholly unsuccessful

1. The parties affidavits including affidavits of witnesses covered intense and factually dense disputes of the conduct of each that, if proven, may have been relevant to the application of section 79(4) of the Act to the ascertainment of a just and equitable property settlement. I refer to and repeat [106] of the reasons (recited above).
2. It is clear from the detailed and extensive affidavit material dealing with those matters, that each of the parties applied significant time, effort, money and grief in making allegations and rebutting or defending the other's allegations. Counsel for the Husband conceded that in the circumstances of the sensible agreement (recited at [106]) that saved the parties some likely 3 or 4 days of court hearing time and expense, that a "carve out" from any costs order of the expense of making and rebutting those "profound criticisms" would have to be made.
3. Hence, on the one hand the parties conducted the litigation by unnecessarily adding to the trouble, expense, money and grief of the litigation by the making of allegations that were ultimately sensibly not pursued, but on the other hand when conducting the final hearing, had the courage and maturity to accept the agreement brokered between counsel at the last minute not to pursue those matters in the final hearing.

The procedurally troubled course of the proceedings

1. In the circumstances where both parties broadly rely upon the others conduct of proceedings as either supporting a costs order or its dismissal, it is necessary to pay some attention to the protracted and troubled course of interlocutory proceedings and complaints of each party. Neither party contended that the other had so conducted the proceedings so as to necessitate or cause the significant time in court on interlocutory directions, adjournments and so on. Those difficulties included the following:
2. On 10 February 2021, the matter was listed for final hearing on 21 February 2022:

...

1. The proceedings are listed for Final Hearing for 2 days commencing 21 February 2022 at 10.00am.

...

(emphasis added)

1. On 16 February 2022, the February 2022 final hearing was vacated, and the matter was set for a further interim hearing on 25 February 2022.
2. When the matter was heard on 25 February 2022, very detailed orders were made by consent for a further part property settlement payment, disclosure, as well as a valuation of the business and properties of the parties. The matter was listed for final hearing for a second time.
3. The matter came before another Judge of this Court for mention on 30 August 2022 where the final hearing was once again vacated and adjourned to May 2023 before me. The orders also set out that the parties were at liberty to seek the matter be mentioned on short notice.
4. On 25 November 2022, the Chambers of another Judge received an email from the solicitors for the Wife seeking the matter be listed for mention. The Wife complained of the conduct of the Husband as to disclosure and cooperation with valuation procedures.
5. The Husband retained his current solicitors on or about 1 December 2022.
6. Through more communication between the Court and the parties, the matter was listed for mention on 20 December 2022, where further very detailed orders relating to procedural matters and valuations were made by consent.
7. On 28 April 2023, my Chambers received joint correspondence from the parties' solicitors requesting a further adjournment of the final hearing for reasons that included:[12]

There are a number of unresolved issues relating to the appointment of previously nominated single experts in this matter and in relation to the position of a third party who has engaged separate legal representation but is not yet a party to the proceedings...

...

As a consequence of the unresolved nature of those matters, the single expert reports have not been completed and there has been no mediation between the parties, as was contemplated by previous interim orders.

Our purpose in writing to you is to indicate that in the above circumstances, the proceeding will not be ready for Trial on 15 May 2023 and will need to be re-listed...

...

The parties request by agreement that His Honour leaves the matter listed before him on 15 May next so that we will be in a position to inform His Honour as to whether there remain any unresolved issues which might otherwise require further interim determination or whether the matter is ready to be re-fixed for Trial later in the year.

1. The matter remained listed for 15 May 2023, but for a directions hearing and an update on the outstanding issues. On that occasion, I listed the matter for Final Hearing on 5 February 2024 (where this would be the fourth time the matter was set down for trial) and a further interim hearing. At the further interim hearing on 5 February 2024, further orders were made including orders that contemplated the long delayed private mediation proceeding after the parties had filed trial material:
   1. That paragraph 1 of the Orders made 15 May 2023 be varied to provide that [Mr R] be the single expert in relation to the matters specified in that paragraph.
   2. That paragraphs, 2, 3, 5, 6 and 7 to 15 of the Orders made 15 May 2023 remain in full force and effect subject to the Applicant filing trial material on or before 12 January 2024 and the Respondent by 25 January 2024, and should [a named mediator] be unavailable the parties shall select an alternate member of counsel to mediate pursuant to Order 5 of those Orders.

...

1. Within 30 days of reports being available pursuant to paragraphs 1 and 3 above, the parties attend mediation with [a member of counsel] as mediator at their equal cost.

1. The mediation proceeded on 30 January 2024.
2. On 31 January 2024, the Husband filed an urgent application in a proceeding seeking an adjournment of the final hearing listed for 5 February 2024. Contemporaneously with the filing of the application, the Husband's solicitors sent a letter to the Court which set out the details of the application:[13]

[Mr Miratos] seeks an urgent Mention of this matter and an adjournment of the Final Hearing in circumstances where [Ms Miratos] provided our offices with several boxes of hard copies of financial disclosure yesterday, 30 January 2024, during the parties' private mediation before [a member] of Counsel. On a preliminary review, this financial disclosure amounts to thousands of pages of what appear to be highly relevant documents.

1. The matter was called for an urgent mention the following day, where I made orders that the matter be listed for a compliance and readiness hearing before me on 3 May 2024 and was again fixed for a final hearing on 29 July 2024 (the fifth time). Costs of the mention on 1 February 2024 were reserved.
2. The matter proceeded to a compliance and readiness hearing on 3 May 2024 and the final hearing began on 29 July 2024. That is, nearly two and a half years after the matter was first listed for final hearing.
3. That lengthy account of the proceedings is the context within each of the parties rely upon the conduct of the other of the proceedings as relevant to the costs question. I was not asked to, nor can I, make findings as to whether either party was at fault or more at fault than the other, as to procedural matters including disclosure over that troubled history, and I do not.
4. Further as to the conduct of the proceedings, I refer to and repeat [102] of the reasons for the final orders.
   1. Part of the Businesses includes some sheep. I infer yarding the sheep for shearing proved to be much easier than corralling the parties and experts to produce valuation evidence. Ultimately that task was successful and the single expert valuations were in evidence and not disputed.
5. Both parties were unsuccessful on significant aspects of the case. The Wife achieved much less than the payment that would represent an equal division of the equity of the parties' assets. But, the Husband is required to pay much more, one and a half times more or 10.5% of the property pool more, than he pressed. The Wife did not obtain orders that gave control of the almost immediate sale of the entire farm as she pressed but the Husband did not achieve orders requiring the Wife to vacate the FMH immediately and he did not achieve orders that gave him 12 months to raise the necessary funds before the default provisions with penalty interest operated, only six months.

Section 117(2A)(d) - Proceedings necessitated by failure to comply with orders

1. At the various interlocutory stages described above, each of the parties attributed fault to the other as to proper and timely disclosure and relevant documents and information and as to sensible cooperation necessary to enable proper valuation evidence to be before the Court that would permit the matter to progress to final hearing. At interlocutory stages, each alleged the other was not complying with the letter or at least the spirit of the many directions and orders of the Court. In the costs submissions, neither party addressed or pressed that the conduct of the other of these interlocutory or discovery matters contended for or against orders for costs on the conduct of proceedings ground.
2. I do not proceed on the basis that either party has, or has not, failed to comply with procedural orders of the Court.

Sections 117(2A)(f) & (g) - Offers in writing and "other matters"

1. In written and oral submissions the Husband relied upon offers alleged to be communicated during the mediation on 30 January 2024. The Wife asserted that evidence of these offers made in mediation was inadmissible. Discussions with counsel contemplated that if admissible, the weight to be given to any oral offer in mediation would need to be dealt with.
2. In those circumstances it is convenient to deal with offers in writing and oral offers together. The Husband did not make an offer after the mediation on 30 January 2024 as the rules required him to. The Rules, recited above, required both parties to do so within 28 days of the conclusion of any mediation. The Wife did make an offer in writing, but about three months after the mediation. That offer was in evidence on this costs application but was wide of the mark.

1. It was common ground that the parties had attended a mediation back on 30 January 2024 before an experienced mediator and were represented by solicitors and counsel at that mediation. On 15 May 2023, the parties had been ordered to attend a mediation as follows:
   1. Within 30 days of reports being available pursuant to paragraphs 1 and 3 above, the parties attend mediation with [a member of counsel] as mediator at their equal cost.
2. The mediation can be described as a "private" mediation but also as a "court ordered" mediation. In this case, I cannot discern any practical difference or consequence as to whether the intended mediation had been ordered by the Court or whether the parties had themselves decided to undertake it.
3. I infer that the mediation was undertaken within the parameters of the mediation agreement executed by the parties and the mediator beforehand. After enquiries by me during the hearing, the mediation agreement was produced and clause 10 of that agreement was tendered in evidence without objection. Clause 10 provided as follows:
   1. Except as all the parties may otherwise agree in writing, anything said or done by any person at the mediation is said or done without prejudice and no party shall be entitled to call evidence of anything said or done by any person at the mediation, except as required by law.
4. The mediation was unsuccessful. What was said, or not said, within that mediation was controversial in the costs application as well as whether or not what was said, or alleged to be said, in the mediation was admissible at all.

Section 131(1) & (2)(h) of the Evidence Act

1. To adduce the oral offer in mediation, the Husband relied upon sections 131(1) and 131(2)(h) of the Evidence Act 1995 (Cth) ('Evidence Act') and those provisions are as recited earlier.
2. The Husband asserted that a number of oral communications in the course of the mediation constituted oral offers of settlement and, by virtue of section 131(2)(h) of the Evidence Act, such oral offers were admissible on the costs application. On the costs application, the word "communication" in section 131(2)(h) was said to authorise the admission into evidence the oral offer/s in mediation. They were said to be relevant because they were more generous to the Wife than the result, and had they been accepted would have avoided the trouble and expense of the proceedings from that point and they showed the unreasonable attitude of the Wife as to the size of the property settlement she sought.
3. The Husband asserted:
   1. s.131(2)(h) of the Evidence Act 1995 (Cth) (Evidence Act) allows evidence of a "communication made" or a "document prepared" in connection with an attempt to negotiate a settlement to be adduced if relevant to deciding liability for costs. Plainly communications at a mediation relating to an attempt to reach a settlement are encompassed by those provisions.
4. The Husband acknowledged section 114UB(3)(f)/117(2A)(f), referring to "offers in writing". But, in substance, submitted that by reason of subsection (h) of section 131(2) of the Evidence Act, the oral statement during the mediation was admissible as a "communication" referred to in the Evidence Act, regardless of "(f)", and that part (117)(2A)(g) ("other matters" encompassed "oral offers" permitted by section 131(2)(h).
5. What was said within the mediation was in part controversial. The Husband asserted that during the course of the mediation he had made a number of offers on terms that he be given "the opportunity to raise any agreed further payment to the wife upon security of the real property... but that he accepted that the sale of some of those real property interests would be required if he could not raise the necessary funds or defaulted in the making of any part of the agreed payment." I will refer to that submission in these reasons as "the terms". In written submissions, the Husband alleged that on the terms he made a total of three offers to pay the Wife a property settlement. The allegations were set out in written submissions as follows:
   1. The husband's first offer at mediation was to pay the wife the sum of $1.8 million on those terms.
   2. The wife rejected that offer and counter-offered to accept the sum of $3.3 million.
   3. The husband's second offer at mediation was to pay the wife the sum of $2.0 million.
   4. The wife rejected that offer and counter-offered to accept the sum of $3.2 million.
   5. The husband's third and final offer at mediation was to pay the wife the sum of $2.25 million.[14]

31. The wife rejected the husband's final offer and the mediation concluded.

Dispute about offers communicated in mediation

1. What was offered within the mediation was controversial. The Husband's solicitor had then sworn an affidavit corroborating the assertions in the written submissions. Two of the Wife's solicitors swore affidavits that agreed to only part of the allegations. In substance, those deponents asserted:
   • that the $1.8 million proposal was expressed to be less the $150,000 part property settlements the Wife had already received hence, I infer, a further payment of $1.65 million and the proposal did not contain any terms, or at least not the terms alleged by the Husband; and
   • that the $2 million proposal included that the payment was in addition to the $150,000 part property settlement the Wife had already received, but that the proposal did not contain any terms, or at least not the terms alleged by the Husband; and
   • A $2.25 million proposal was not communicated to the wife made; and
   • it was accepted that the Wife had proposed a payment of $3.3 million and later $3.2 million.
2. Fortunately, on the morning of the costs hearing, the parties sensibly accepted the agreement reached between their counsel that the Court was not requested to determine the disputed aspects of what was alleged to have occurred within the mediation, and no party sought any witness for cross-examination. Hence the allegation of the $2.25 million offer and the "terms" allegation was then not relied upon.
3. The Husband's case was that these statements or offers in mediation that the Husband would pay a sum above (and significantly above) that awarded by the Court, demonstrated an imprudent refusal of an offer to compromise and, in combination with other circumstances, justified both an order for costs and an order for indemnity costs from the day after the mediation until the final orders were made.
4. The consequence of the Wife not accepting those proposals within the mediation was said to be:
   1. Had the wife accepted any of the offers of the husband at mediation, she would have received considerably more than what was ultimately ordered that she receive; the parties would also each have avoided the costs thrown away by the adjournment of the January 2024 trial listing and the July 2024 trial itself.
5. The Husband asserted that the Wife's conduct of the proceedings from the day after the mediation justified, pursuant to section 114UB(3)(c)/117(2A)(c), in combination with other circumstances, an order for costs and indemnity costs. The conduct criticised was in pursuing orders that did not permit the Husband any opportunity to retain the Farm, or even part of the Farm, and in pursuing a property settlement of no less than 50% of the pool that would effectively create an entitlement to a property settlement of a further payment of over $3.1 million. Such conduct was said to be unreasonable in all of the circumstances as found in the reasons.

1. At common law, since at least 1889, without prejudice negotiations were not admissible on questions of costs.[15]

1. A discussion convenient enough for present purposes of how certain offers or negotiations came to be admissible at common law is contained in the Full Court of the Family Court decision of Steel & Steel (1992) FLC 92-306 ('Steel's case'). Steel's case was decided under sections 117(2A)(f) & (g) & 117C of the Act as those sections then were.
2. Section 117(2A)(g) was in the same form then as now. Section 117(2A)(f) and section 117C then provided:

(f) The policy of law centred on avoiding litigation between parties to a marriage by negotiation is of great importance to the Family Court. If correspondence containing negotiations is to be used on questions of costs, that should be made clear by express statements.

1. The Family Law Rules 1984, applicable from 2 January 1985, included Order 29 that merely stated:

Rule 1 Filing of copy of offer, acceptance or withdrawal of where

1. Where ---

(a) a copy of an offer of settlement in accordance with Form 60;

(b) a notice of withdrawal of an offer of settlement in accordance with Form 61; or

(c) a copy of an acceptance of an offer of settlement in accordance with Form 62;

is filed, the copy or notice, as the case may be, shall not be placed on the court file in relation to the proceedings but shall be placed in a separate file.

1. The Family Law Rules 1984 also included in schedule 1 at Form 60, a specified form headed "Offer Of Settlement".
2. After determining the section 79 orders dispute, on the following costs application, the learned Trial Judge had taken account of the Wife's offers described as "pursuant to section 117C". The final orders were more generous to the Husband than the Wife's "pursuant to section 117C" offers. The first relevant such offer was made about 5 months before the final orders and open until withdrawn by the next. But other without prejudice others in writing had been made that did not assert that they would be relied on the question of costs. The learned Trial Judge had taken account of the "pursuant to section 117C" offers and the other offers in writing including those that did not advert to being used on the question of costs.
3. The learned Trial Judge had ordered that the Husband pay 70% of the wife's solicitor and client costs of the entire proceedings that was apparently an amount "equivalent to the wife's taxed costs of all of the proceedings".[16]
4. The Full Court referred to and adopted the 1964 discussion of the High Court in Rodgers v Rodgers (1964) 114 CLR 608 ('Rodgers') and relied upon and adopted Cross on Evidence (as it then) was in the 1991 Australian edition as follows:

"As part of an attempt to settle a dispute, the parties frequently make statements 'without prejudice'. When this is done, the contents of the statement cannot be put in evidence without the consent of both parties, the case being one of joint privilege. Re Turf Enterprises Pty Ltd (1975) Qd R 266 at 267."

...

"Obviously it is in the public interest that disputes should be settled and litigation reduced to a minimum, so the policy of the law is in favour of enlarging the cloak under which negotiations may be conducted without prejudice..."

...

"The Courts have further encouraged 'without prejudice' negotiations by refusing to take them into account when considering questions of costs or security for costs or statements made in letters written on their clients' behalf in proceedings in which they are sued personally..."

...

"In certain cases where the procedure of paying money into court is not available it has been held that a party may make an order which is marked 'without prejudice save as to costs'. This procedure, known as the Calderbank letter or offer, was first used in matrimonial cases, but in England at least, it is now recognised to be of general application. The consequence of marking an offer 'without prejudice save as to costs' is that the document and its contents are treated as being without prejudice for the determination of the substantial issues between the parties - they are privileged. But they may be used after these issues are determined, for the purpose of deciding incidence of costs.

1. The Court referred to and adopted the observations of Hodgson J in AMEV Finance Ltd v Artes Studios Thoroughbreds ty Ltd (1988) 13 NSWLR 486.

"In my view it is desirable that the effect of without prejudice communications be clear, and while accepting the view expressed in the recent decisions that such correspondence is admissible, where the intention to tender them on the question of costs has been shown, it seems to me that to allow without prejudice material to be tendered where that intention is not disclosed would introduce undesirable uncertainty into the position. It could be that persons making without prejudice offers might wish that such offers not be used even on questions of costs and it seems to me that the possibility of protecting without prejudice offers altogether should be preserved.

...However, ...it is clear that neither counsel for the parties adverted to the fact that the correspondence in question was clearly privileged and apparently the trial judge did not advert to the matter himself. It may well be that all concerned mistook the effect of the words "or otherwise"[17] in sub-paragraph (f) of section 117(2A) and acted in the belief that that sub-paragraph had the effect of abolishing the privilege attaching to offers of settlement made whilst proceedings were contemplated or pending. In our opinion, the section refers to offers which are not subject to privilege, and the section is not intended to override any existing privilege relating to the negotiations between the parties. The words "or otherwise" refer to offers which are admissible on general principles such as an offer contained in correspondence in which it is stated that the letter in question will be used on the question of costs.

In our opinion, the policy of the law centred on avoiding litigation between spouses whenever it can be avoided by negotiations is of great importance in this court. The parties should ordinarily be free to conduct their negotiations for settlement without apprehension that these negotiations can be used against them either on matters or property or on questions of costs. If correspondence containing negotiations between the parties is to be used on the questions of costs, then that should be made clear by express statements in the correspondence, so that the other party will know this and fashion his or her conduct accordingly.

...

The letters clearly were written on a without prejudice basis and did not contain any limitation that they would be used on the question of costs. In such circumstances, and in the absence of a waiver, we think that his Honour should not have had regard to their content.

If he had not done so, he would have been confined to a consideration of the offers made under section 117C.

1. I regard the finding of "should not have had regard to their content" as being more elegant, but synonymous with "inadmissible".
2. At the time Steel was determined, by Order 24 Rule 8 of the Family Law Rules 1984[18], that is Judge made rules (not an act of Parliament), provided as follows.

1(2) [Party must attend in person] A party shall attend a conference under this rule in person, and may do so either with or without counsel of solicitor.

1(3) [Parties to endeavour to reach agreement] Parties who attend a conference under this rule shall make a bona fide endeavour to reach agreement on relevant matters in issue between them.

...

1(8) [Evidence inadmissible] Subject to sub-rule (9) evidence of anything said, or of any admission made, in the course of a conference held pursuant to this rule is not admissible in a court (whether or not exercising Federal jurisdiction) or before a person authorised to hear evidence by consent of parties or by or under the Act, the Regulations or these Rules.

1(9) [Evidence which may be admitted] Sub-rule (8) does not prevent evidence of anything said, or of any admission made, in the course of a conference being admitted in evidence -

(d) In a court upon the trial of a person for an offence committed at the conference;

(e) Upon the hearing of an application under section 108 or sub-section 114(4) of the Act in relation to any statement made or act done at a conference;

(f) Upon the hearing of an application for costs arising out of the conference, [19]

And in such a case the Court in which the evidence is admitted shall treat the evidence in the manner necessary to preserve, so far as is practicable, the confidentiality of the conference.

1. Steel's case also adopted with approval statements from Cross on Evidence (as in was in 1991) that, in substance, asserted that, "The ordinary law concerning without-prejudice statements applies to negotiations ...which take place with a view to compromising a matrimonial cause...(and) this would probably be the case with all negotiations carried on through a mediator". Hence, the detailed discussion in Steel's case dealing with the common law privilege of genuine settlement negotiations and section 117 of the Act (as it then was) did not refer to, and I infer did not contemplate, the possibility of oral without prejudice communications within a conciliation or mediation being admissible or able to be had "regard" to on the question of costs.
2. Section 117(2A)(g) was then as it is now, and although expressly referred to did not influence the Full Court in Steel's case to have regard to or admit the other without prejudice offers. It is clear enough on the ratio of Steel's case that an oral offer, including in mediation, and not adverting to being relied on for costs would not then have been had regard to or admitted into evidence.
3. The end result was that the Wife received only that part of her party/party costs from the day after the first in time "pursuant to section 117C" offer that was more generous to the Husband that the final orders and not a costs order equivalent to her party/party costs of all of the proceedings.

1996: Harrington & Lowe: Order 24 rule 1(8) struck down as without power.

1. In Harrington & Lowe (1996) 190 CLR 311, FLC 92-668 ('Harrington'), a party to section 79 property settlement orders had sought to set aside those orders pursuant to section 79A(1) of the Act[20] on the basis that she had entered into consent orders in the mistaken belief that the detail of the orders put into effect what she said she had agreed to an Order 24 ('O 24') conference sometimes described as a conciliation conference and undertaken before a Registrar of the Court. It was further alleged that the Respondent knew that the Applicant was entering into the consent orders in a mistaken belief that the detail of the orders reflected the agreement reached at the O 24 conference, but nevertheless allowed orders to be made. It was alleged the Respondent to the section 79A application had engaged in equitable fraud and that what was said at the O 24 conference was relevant to that allegation.
2. In Harrington the Judge at first instance had permitted the evidence of what was said at the O 24 conference to go into evidence on the basis that O 24 of those Rules was "ultra vires". On appeal, the Full Court of the Family Court disagreed. The High Court found that the Judge at first instance was, in the circumstances of that case, correct to take account of the evidence and the impugned O 24 did "much more than re-state the law as to evidentiary privilege in respect of "without prejudice" communications. That privilege is concerned with the admissibility of evidence at trial after the failure of negotiations and even then does not provide a legal norm which is absolute in nature. Thus, in a proceeding in which the ordinary rules of evidence apply, "without prejudice" material will be admissible if the issue is whether or not the negotiations resulted in an agreed settlement. So also where what is in issue is the entry into an impugned agreement as a consequence of engagement in misleading and deceptive conduct by another party... What is significant is that O 24 r 1 (8) and (9) had no valid operation to prevent the primary judge in this case from admitting the evidence in question upon the application under s 79A(1) of the Act."

AFTER THE EVIDENCE ACT

1. It is convenient to deal with general law and Family Law Act cases after the introduction of the Evidence Act 1995 (C'lth)('the Evidence Act') together. The Evidence Act including section 131(2)(h) applied from 23 February 1995, about two years after Steele's case. The Husband's submissions in this case in part relied on section 131(2)(h) of the Evidence Act. Sections 131(1) & 131(2)(h) are 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:

...

(h) the communication or document is relevant to determining liability for costs; or

...

1996: Marks v GIO: 131(2)(h) and oral negotiations admitted on costs

1. Soon enough after the introduction of the Evidence Act and section 131(2)(h), on 13 May 1996, Einfield J in the Federal Court of Australia dealt with the matter of Marks, Kinross, McCullagh & Williamson v GIO Australia Holdings Ltd (No 2) (1996) 66 FCR 128 ('Marks v GIO') on an application to depart from the usual rule (that a successful litigant received an order for costs on a party-party basis) so as to obtain an order for indemnity costs. The evidence discussed protracted settlement negotiations contained in "various conversations and documents exchanged in the context of settlement negotiations". The evidence also discussed "a further set of settlement discussions". Despite the evidence including "this talk of settlement" it is apparent that Einfield J regarded oral negotiations as admissible. It is convenient enough to recite the decision at [135] of the case as follows:

"However, irrespective of the common law position, the legislative framework is now clear and unambiguous. S131(2) of the Evidence Act clearly allows for 'without prejudice' communications between the parties which are relevant to the issue of costs to be admitted into evidence on that issue. For this reason I hold that the applicants may adduce evidence of such communications which are relevant to the determination of the question of costs."

1. The admissible, because of the Evidence Act provision, negotiations in Marks v GIO were oral but were not within a mediation. That may not have made any difference to the decision.

2002: ACCC v Safeway: sec 131(2)(h) makes oral negotiations admissible

1. In Australian Competition and Consumer Commission (ACCC) v Australian Safeway Stores Pty Ltd (No 3) [2002] FCA 1294 ('ACCC v Safeway (No 3)') Goldberg J dealt with the issue of whether the plaintiff's refusal of an offer to compromise the proceeding was unreasonable and imprudent. In doing so, his Honour dealt with the question of "are certain 'without prejudice communications between the parties' solicitors' admissible?
2. The negotiations relevant to the decision were not contained within a mediation. His Honour referred to negotiations that were contained in a conversation albeit recorded in a contemporaneous file note that was in evidence as well as negotiations in writing. His Honour dealt with, referred to and relied upon section 131(2)(h) of the Evidence Act[21] and dealt with the contentions of ACCC including the following:
   1. The Commission submitted that s131(2)(h) did not render the communications expressed to be "without prejudice" admissible because the parties had, by so designating their communications, agreed that the communications would not be admissible and therefore not relevant to any issue before the Court. Put another way, it was submitted that because the parties had expressly agreed, by designating their communications "without prejudice", that they would not be admissible in evidence, the communications could not then be said to be "relevant to determining liability for costs" as the parties had agreed that they would not be so relevant.

...

1. This particular issue, whether designating a communication as "without prejudice" means that the parties to it have agreed it is not relevant, in the legal sense, to any issues between the parties before the court, does not appear to have arisen before for determination...

1. His Honour considered the view of Santow J in Bruinsma v Menczer (1995) 40 NSWLR 716 (Bruinsma') that section 131(2)(h) of the Evidence Acts meant "a letter offering to settle... [was] clearly admissible ".
2. His Honour also referred to Nobrega v Roman Catholic Church (No 2) (1999) NSWCA 133 ('Nobrega') where in an application for indemnity costs a without prejudice letter was admitted into evidence and the Court in Nobrega had observed to the effect that "... although an objection to admissibility [to a without prejudice letter] would inevitably been upheld prior to the coming into operation of the Evidence Act 1995 (NSW), s131(2)(h) of that Act changed the position so that the letter was admissible on any argument as to costs.".
3. His Honour concluded as follows:
   1. Although a consensual arrangement or agreement underlies the basis or part of the basis upon which "without prejudice" communications are protected from admissibility, that consensual aspect does not determine the issue of relevance for the purposes of s131(2)(h) of the Evidence Act. The relevance there provided for is to be judged and determined by reference to legal principle rather than the decision of the parties.
   2. I am therefore satisfied that [the file note of the offer in the phone call between solicitors] and [the other solicitor's] letter are admissible in evidence [on this costs application]...
4. The final decision as to costs in ACCC took into account and weighed a number of matters as well as the oral and in writing negotiations.

May 2003: Rajski: 131(2)(h), oral negotiations in mediation not admissible

1. In Rajski & Anor v Tectran Corporation Pty Ltd & Ors [2003] NSWSC 476 ('Rajski') Palmer J dealt with an application to order that mediation be "further extended". Palmer J dealt with the issue of the juxtaposition of section 131 and section 135 of the Evidence Act and section 110P(4) & (5) of the Supreme Court Act 1970 (NSW) ('Supreme Court Act NSW'). Section 131 including 131(2)(h) is as recited above, and section 135 (there is no difference between the NSW and Commonwealth provisions) is as follows:

Section 135 General discretion to exclude evidence

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

(a) be unfairly prejudicial to a party; or

(b) be misleading or confusing; or

(c) cause or result in undue waste of time.

1. Sections 110P(4) & (5) of the Supreme Court Act (in Part 7B of the Act) were as follows:

(4) Evidence of anything said or of any admission made in a mediation session or neutral evaluation session is not admissible in any proceedings before any court, tribunal or body.

(5) A document prepared for the purposes of, or in the course of, or as a result of, a mediation session or neutral evaluation session, or any copy of such a document, is not admissible in evidence in any proceedings before any court, tribunal or body.

1. In determining the application, counsel for the Applicant had asserted that it was necessary "for the Court to examine what had happened at the mediation". His Honour observed:
   1. That is so, it seems to me, in order to avoid the very thing that is occurring in this case; that is that instead of the mediation affording a haven from litigation in which parties may negotiate frankly and informally towards settlement of their dispute, the mediation itself becomes yet another area of conflict generating another whole set of proceedings in court.
   2. That such a circumstance can come about, as it has come about in this case, is enormously counterproductive not only for the parties themselves, but it is an enormous waste of the resources of the Court, which Pt7B of the Supreme Court Act was designed to prevent.

...

1. ... it seems to me that the mediation process was intended to facilitate settlements between parties, not to provide them with another battleground.

1. His Honour also dealt with the issue of any conflict of section 131(2)(h) of the Evidence Act and the Supreme Court Act mediation provisions:
   1. It seems to me that s131(1) and s131(2) of the Evidence Act are concerned with the exclusion from and admission into evidence generally of matter which may otherwise attract the principles of the common law relating to "without prejudice" communications between parties made for the purposes of negotiating settlement; they are not intended to apply to the special process of settlement negotiation provided by a mediation ordered by the Court under the provisions of Pt7B of the Supreme Court Act. Pt7B contains its own rules as to the evidentiary use which may be made of what is said and done in and for the purpose of settlement negotiations in a mediation under that Part and, in my view, those rules override the general provisions of s131 of the Evidence Act.

...

1. ... But I do not think that it will be helpful, nor is it permissible, nor is it within the spirit and intendment of Pt7B of the Act, that for the purpose of answering that question, I allow the parties to conduct, as they presently propose to do, four days of hearing in this Court in which what transpired in the mediation is the subject of allegation and counter allegation for the purpose of determining who has acted reasonably or unreasonably, and who is at fault in the breakdown of the mediation process so far.

1. As to the issue under section 135 of the Evidence Act, Palmer J observed:
   1. It seems to me... if the material which is directed to that purpose, and contained in various documents which the parties seek to tender, including the letter of 25 November, were admissible for that purpose, that material should be excluded pursuant to s135 of the Evidence Act on the ground that the probative value of such evidence in relation to the real issue to be determined in this application is substantially outweighed by the danger that the evidence would either be confusing within subpara(b) of the section, or else would cause or result in undue waste of time within the meaning and operation of subpara(c) of that section.

...

1. The second and more powerful reason is that such evidence should be excluded because an investigation, and a "finger-pointing exercise" in particular, as to what went wrong with the mediation in the past will, in my view, result in an undue waste not only of time but also of the Court's resources...

...

1. ... I think that this letter should be excluded on the discretionary ground under s135 of the Evidence Act both under subparagraphs (b) and (c). It is a letter which gets further into the debate as to the conduct of the mediation, which I do not think is permissible, and if admitted on its own even with ... consent, it may very well tend to produce a distorted picture of the events which are in contest.

...

1. ... even if the affidavit of ... had been read or sought to be read, I would probably have rejected that affidavit in the exercise of discretion under s135 of the Evidence Act for the reasons which I have already given. It seems to me, as I say, that the Court should not permit the process of mediation to become a further arena of conflict.

1. The ratio decidendi of the decision would be that the provisions of legislation about mediation privilege specific to the jurisdiction of the primary dispute overrode section 131(2)(h). And the practical wisdom of experience of the observations of Palmer J is also compelling.

2003 Family Court: Kilich, oral offer on first day of hearing admissible

1. In August 2003, a few months after Rajski, the Full Court of the Family Court of Australia, Kay, Warnick and Waddy JJ in the matter of Kilich v Wood [2003] FamCA 629, FLC 93-169 ('Kilich'), dealt with an appeal involving an order for costs where the evidence included the following from the first instance decision:
   1. The further evidence is that on the morning of the first day of the hearing an offer was made on behalf of the husband for payment to the wife of $60,000 in settlement of the proceedings that were then about to be heard. That offer was rejected. There is some difference in the evidence before me as to the terms of that offer.

...

1. As events transpired the wife received orders which were equivalent to approximately half of the last-mentioned offer.

1. At the time of the decision, section 117(2A) was the same as at the time of Steel, that is:

...

2A ...

(f) whether either party to the proceedings has, in accordance with section 117C or otherwise, made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

(g) such other matters as the court considers relevant.

1. No reference was made to the Evidence Act and/or section 131(2)(h). The Full Court rejected the argument that the reference to "offers in writing" precluded reference or consideration of an oral offer. The Full Court acknowledged that there was "some force" to that argument. The Court went on to observe at [25] as follows:
   1. ...there is, of course, another available interpretation of the relevant sub-paragraphs. That is, that while the legislation makes it mandatory that the Court have regard to terms of offers in writing, it may have regard - and shall, if it deems relevant - to an oral offer. On this interpretation, there remains a distinction between the position of offers in writing and those not so. Accordingly, both sub-paragraphs[22] serve a purpose in relation to the consideration of offers, in writing or oral.

1. The Court referred to the well known decision of Cutts v Head [1984] CH 290 ('Cutts v Head') as follows:

The public policy behind taking account of such offers is that 'parties should be encouraged so far as possible to settle their disputes without resort to litigation'

1. The Court further recited from Cutts v Head at 299 and 306:

"...Usually such offers in writing. Oral offers would commonly suffer the disadvantage of not being able to be precisely provide. However in principle, there is no reason why an oral offer to settle cannot be proved, and if it is, why the fact that it as made cannot be brought before the court o tribunal in due course when the result is known."

1. The inherent difficulty with an oral offer was also acknowledged at [30]:
   1. It was further submitted that the trial Judge should not have had regard to the offer because of some uncertainty as to its terms. However, it is to be noted that the trial Judge had regard to the offer as it had been understood by the wife...
2. While accepting that an oral offer was admissible, the Court went on to remark upon the "highly undesirable" course of an oral application for costs at the end of a trial raising "yet further factual dispute". But highly undesirable or not, and without reference to section 131(2)(h) or Steel's case or Rajski, the Court did accept that the oral offer was admissible in the form "as it has been understood by the Wife".
3. Because of the circumstances of that case, the Full Court found the oral offer to be "relevant" and hence admissible. But the Full Court then went on to place little or no weight upon that oral offer and upheld the appeal of the offeree and ordered that there should be no order as to costs because of the financial circumstances of the parties.
4. In Kilich the admissibility of the oral offer turned on the scheme within section 117 itself and in particular, 117(2A)(g) - "such other matters the court considers relevant[23]."

The Family Law Rules 2004

1. New rules, the Family Law Rules 2004 (SR 2003 No 375) came into operation on 29 March 2004, that is a few months after Kilich. Those rules had a new scheme as to offers to settle.
2. Those rules, including the preliminary notes at the start of the new part dealing with offers to settle, stated as follows:

PART 10.01 - OFFERS TO SETTLE

Note Each party is encouraged at all times to make an offer to settle to the other party in an effort to resolve a case. This Part sets out the rules that apply to offers to settle in the Family Court. Part 10.01 contains two Divisions.

Division 10.1.1 applies to all offers to settle and provides for:

(a) how an offer is made;

(b) the form an offer is to take;

(c) how an offer is accepted or withdrawn;

(d) the timing of acceptance or withdrawal; and

(e) what to do when an offer is accepted and a case is resolved.

Division 10.1.2 applies only to offers to settle in property cases in which an offer to settle must be made after a conciliation conference.

Rule 10.01 HOW TO MAKE AN OFFER

10.01(1) A party may make an offer to another party to settle all or part of a case by serving on the other party an offer to settle at any time before the court makes an order disposing of the case

Note See also paragraph 177(2A)(f) and section 117C of the Act in relation to offers to settle.

10.01(2) A party may make an offer to settle all or part of an appeal by serving on the other party an offer to settle at any time before the court makes an order disposing of the appeal.

10.01(3) An offer to settle:

(a) must be in writing; and

(b) must not be filed

Note A later offer to settle has the effect of withdrawing an earlier offer (see subrule 10.03(3)).

Rule 10.02 OPEN AND 'WITHOUT PREJUDICE' OFFER

10.02(1) An offer to settle is made without prejudice (a without prejudice offer) unless the offer states that it is an open offer.

10.02(2) A party must not mention the fact that a without prejudice offer has been made, or the terms of the offer:

(a) in any document filed; or

(b) at a hearing or trial.

10.02(3) If a party makes an open offer, any party may disclose the facts and terms of the offer to other parties and the court.

10.02(4) Subrule (2) does not apply to:

(a) an application relating to an offer; or

(b) an application for costs.

...

10.06 COMPULSORY OFFER TO SETTLE

10.06(1) This rule applies to a property case.

10.06(2) Each party must make a genuine offer to settle to all other parties within:

(a) 28 days after the conciliation conference;

(b) if no conciliation conference has been held - 28 days after the procedural hearing at which the case was allocated the first day before the Judge; or

(c) such further time as ordered by the court.

10.06(3) The offer to settle must state that it is made under this Division.

Note 1 For rules about making, withdrawing and accepting an offer, see Division 10.1.1.

Note 2 An offer to settle is a factor that must be taken into account when the court exercises its discretion in relation to costs (see paragraph 117 (2A) (f) of the Act).

Note 3 Rule 11.02 sets out the consequences of failing to comply with these Rules.

10.07 WITHDRAWAL OF AN OFFER

10.07(1) A party who withdraws an offer to settle made under this Division must, at the same time, make another genuine offer to settle.

(emphasis added)

1. I have highlighted the words of the note at the start of the then new Part 10.1. The "notes" are not the Rules but are only an aid to the interpretation of the Rules on orthodox statutory interpretation principles[24].
2. It is clear enough that the Rules, from March 2004, contemplate only offers in writing being relied on under section 117(2A)(f) and section 117C. The notes of the Rules are silent as to section 117(2A)(g).

Dec 2004: Silver Fox: oral offers in mediation admissible

1. In the Federal Court of Australia, in Silver Fox & Ors v Leonards Pty Ltd (No 3) [2004] FCA 1570 ('Silver Fox'), Mansfield J dealt with the issue of whether oral communications, conceded to be without prejudice negotiations in a mediation, and notwithstanding a clause in the mediation agreement that provided:
   1. ...any settlement proposal made in the court of the mediation will be "privileged" and will not be tendered as evidence in any proceedings relating to the dispute. The dispute is defined to include the present proceedings reflected in the applicant' claim and the first respondent's cross-claim.
2. His Honour observed as follows:
   1. Notwithstanding the terms of the Mediation Agreement, the applicants seek to rely upon the communications at the mediation. They contend that the receipt of the evidence of those communications is authorised by s 131(2)(h) of the Evidence Act 1995 (Cth).
   2. In my judgment, the terms of the Mediation Agreement are clear. They do not permit the adducing of evidence of the course of the mediation or what offers were made in the course of the mediation.
   3. It may nevertheless be assumed that the terms of the offers made during the mediation are relevant to determining liability for costs, so that prima facie s 131(2)(h) of the Evidence Act would remove the prohibition in s 131(1) from adducing evidence of communications in an attempt to negotiate a settlement of a dispute.

1. At [36] & [37] his Honour went on to observe as follows:
   1. ...Clearly, it is in the public interest that negotiations to explore resolution of proceedings should not be inhibited by the risk of such negotiations influencing the outcome on those primary issues. It is equally in the public interest that negotiations should be conducted genuinely and realistically. The effect of s 131(2)(h) is to expose that issue to inspection when costs issues only are to be resolved. There is no apparent public interest in permitting a party to avoid such exposure by imposing terms upon the communication, whether by the use of the expression 'without prejudice' or by a mediation agreement.
   2. In my judgment, s 131(2)(h) on its terms applies to the Mediation Agreement. I propose to receive into evidence the two affidavits referred to. I have not overlooked the arguments based upon ss 135 and 138 of the Evidence Act. I do not consider s 138 applies. The applicants could not be said to be acting improperly by using an enabling provision of the Evidence Act. Section 135 relevantly empowers the Court not to receive certain evidence if its receipt would be 'unfairly prejudicial' to a party or parties. I do not regard the terms of the Mediation Agreement per se to demonstrate such prejudice. I would be reluctant to accede to such a general proposition...
2. After admitting into evidence the contents of the mediation that had been pressed to demonstrate a party had acted imprudently or unreasonably in not accepting the offer, his Honour observed as follows:
   1. I also bear in mind that the evidence discloses only the final negotiating offers of the parties. It is not clear to what extent evidence which was adduced at the hearing was made available or adverted to at the mediation. Given the timing of the mediation, it is unlikely that all the material led in evidence was then available. Clearly the medical evidence was not. The picture available to the parties at the time of the mediation is not shown to be, and probably was not, the same as that ultimately before the Court.
   2. In my judgment, for those reasons, the respondents' rejection of the applicants' offer was not imprudent or plainly unreasonable. Nor was their negotiating position imprudent or unreasonable.
3. In Silver Fox there was no reference to a legislative provision specific to the field of the dispute, like for example the Civil Procedure Act in Rajski, there said to limit the applicability of section 131(2)(h). In Silver Fox the key to the admissibility was, in the circumstances of that case, the assumed relevance of the oral offer in mediation.

2005: Amendment to section 117(2A)(f) of the Act

1. By Act No. 98 of 2005, section 117(2A)(f) as it was at the time of Steel & Kilich was amended to provide as follows:

(f) whether either party to the proceedings has, in accordance with section 117C or otherwise, made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

1. Subsection (g) "other matters" was not amended. The practical difference is that the reference in (f) to section 117C and the words "or otherwise" were deleted and what was to be considered was simply "an offer in writing".
2. The explanatory memorandum to the 2005 amending Act merely states under the heading "Costs and Offers of Settlement, Item 5: Paragraph 117(2A)(f)" that:
   1. This item amends paragraph 117(2a)(f) so that when a judge is determining whether to make a costs order (under subsection 117(2)), there is no longer a requirement to consider whether the parties have made an offer of settlement in accordance with section 117C.
3. The further extrinsic material of the "Bills Digest" dealing with the section 117(2A) amendment observes:

Item 5 amends subsection 117(2A) of the Act which sets out the matters relevant to the making of a costs order. Item 5 removes the phrase 'in accordance with section 117C or otherwise' from paragraph 117(2A)(f), but the meaning of the paragraph seems to be unchanged. The Explanatory Memorandum states that 'there is no longer a requirement [for judges] to consider whether the parties have made an offer of settlement in accordance with section 117C'. However, the words 'or otherwise' in the current provision already mean that judges do not have to consider whether any offer of settlement is in accordance with section 117C.

(footnotes omitted)

1. There was no reference to oral offers or to the Full Court's decision in Kilich.

Feb 2006: ALRC 102: communications in mediation

1. In the context of an apparent parliamentary intention that the Evidence Acts should be of uniform application throughout the Commonwealth of Australia, the Australian Law Reform Commission ('ALRC') in ALRC Report 102 released in February 2006 considered whether section 131 of the Evidence Act should be amended so as to adopt and I infer, protect and preserve_, "the terms of a mediation privilege as expressed in Acts such as the Federal Court of Australia Act 1976 (Cth)." ALRC referred to and acknowledged the decision of Palmer J in Rajski and the decision of Silver Fox and observed the mediation protection provisions recited above (for example section 110P(4) & (5) the Supreme Court Act) and Palmer J's observation that those specific provisions "o_verride the general provisions of the [Evidence] Act".
2. ALRC Report 102 then went on to discuss mediation agreements as follows:

15.176 Few submissions were received on this issue. It was note that there is not a great deal of case law on s 131 and mediation. This may mean that the section works well, is not often invoked, or that it is not being utilised by mediators to protect communications.

15.177 The Commissions were told in consultations that most mediators tend to rely on the specific confidentiality provisions located in the other state and federal statutes, such as Family Law Act 1975 (Cth)...to protect them from having to disclose matters discussed in mediation rather than s 131. Confidentiality agreements are also a feature of most specific mediation contracts (where the parties agree to keep the content of the mediation proceedings confidential on a 'without prejudice' privilege provisions, although it was noted that the extent of the common law privilege on settlement negotiations is uncertain (for example, whether it extends to documents prepared before or produced as a result of the mediation).

15.178 It was also noted that issues may arise from the manner in which an agreement was reached in mediation. For example, a party may allege misconduct or duress on the part of a mediator or the other party.

(footnotes omitted and emphasis added)

1. In the circumstances where Order 24 had been struck down by the High Court back in 1996, when it comes to mediation in financial matters, it is difficult to discern what "specific confidentiality provisions were located in the Family Law Act 1975 (Cth)", that the ALRC was referring to.[25]
2. The ALRC concluded as follows:

15.179 From the Commissions' survey of the case law, it appears reasonably well settled that evidence of matters discussed at mediations falls within s 131. While the section could be amended to adopt the terms of a mediation privilege as expressed in Acts such as the Federal Court of Australia Act 1976 (Cth), in the absence of strong submissions suggesting that such action is necessary, it is the view of the Commissions that amendment of s 131 is unwarranted.

1. By Act No.46 of 2006, the Act had been amended to provide that where family dispute resolution had been conducted by a family dispute resolution practitioner, evidence of anything said or admission made by or in the company of the family dispute resolution practitioner conducting the dispute resolution was not admissible in any Court save as to admissions to child abuse (see sections 10F & 10J).
2. Hence it would appear, that if a mediation was conducted so as to be a Family Dispute Resolution conducted by a dispute resolution practitioner, then save for admission of child abuse, the absolute prohibition upon the reference to the content of the mediation may apply. It is difficult to discern why such a broad prohibition would apply to a private, but formal mediation about a financial matter, conducted by one person but not when conducted by another.

2007: Azzi v Volvo: oral negotiations in mediation

1. In Azzi & Ors v Volvo Car Australia Pty Ltd (Costs) [2007] NSWSC 375 ('Azzi v Volvo') Brereton J sitting in the Supreme Court of New South Wales Equity Division, had a bit to say about section 131(2)(h) and how that interacted with the then applicable Civil Procedure Act NSW ('Civil Act') which then provided at section 29(2) as follows:

(a) Evidence of anything said or of any admission made in a mediation session is not admissible in any proceedings before any court or other body, and

(b) A document prepared for the purposes of, or in the course of, or as a result of, a mediation session, or any copy of such a document, is not admissible in evidence in any proceedings before any court or other body.

1. His Honour dealt with the question, in the context of the Evidence Act NSW and the Civil Procedure Act NSW[26] "is evidence of the offers made at mediation admissible?"
2. In Azzi v Volvo, another Judge had made an order referring the parties to mediation. His Honour's observations included:
   1. It is plain that the offers that were made at the mediation could be relevant on the question of liability for costs. Mr Moses submits that as the Court has "jurisdiction", under Civil Procedure Act, s 98(1)(c), to order that costs be awarded on an indemnity basis, and as Civil Procedure Act s 5 provides that nothing in the Act limits the jurisdiction of the Court, the offers made at the mediation are admissible under Evidence Act, s 131(2)(h). He submits that the Civil Procedure Act, and in particular s 30, was not intended to exclude or oust the jurisdiction of the Court to make an indemnity costs order by reference to offers that were made at a mediation.
   2. In my opinion, this misconceives the operation of s 131(2), and confuses provisions ousting jurisdiction with rules of evidence.
   3. As to the first of these matters, Evidence Act, s 131(2)(h), does not make every offer of settlement that may be relevant to a question of costs admissible; rather, it removes, in the case of such offers, the bar to admissibility otherwise imposed by s 131(1). It is only that bar, and not any other bar, that it removes. In particular, it does not remove the bar imposed by Civil Procedure Act, s 30(4).
   4. As to the second aspect, s 30(4) is a rule of evidence, and not a provision affecting the jurisdiction of the Court. It in no way limits the jurisdiction or power of the Court to make a costs order or an indemnity costs order. It simply excludes from admissibility (not only on the question of costs, but at all) evidence of what transpires at a mediation session. That it extends to proceedings in respect of costs is plain enough on its face: the provision says that such evidence is not admissible in any proceedings, any court or other body.
3. Further, Brereton J dealt with any apparent conflict between the Evidence Act provision of section 131(2)(h) and the Civil procedure Act mediation provision is as follows:
   1. ...However... the provision is contained in an Act of Parliament, and a fortiori where that Act (the Civil Procedure Act) is later in point of time than the Evidence Act. Another way of looking at it is that, while the Evidence Act contains a general provision excluding evidence of settlement negotiations, with an exception to that general exclusion where the negotiations are relevant to costs, Civil Procedure Act s 30(4) is a more specific provision directed specifically to negotiations in a mediation session, excluding evidence of such negotiations, without any corresponding exception. When it applies, the later and more specific provision prevails over the more general one.
4. Further, his Honour observed:
   1. The view that I take of the relationship between Evidence Act, s 131(2)(h), and Civil Procedure Act, s 30(4), is substantially the same as that expressed by Palmer J in Rajski v Tectran Corporation Pty Ltd [2003] NSWSC 476. His Honour identified (at [11]) that the purpose of such provisions included avoiding the circumstance that a mediation, rather than affording a haven for litigation in which parties negotiate frankly and informally towards settlement of their dispute, instead become another area of conflict, generating further proceedings in Court.
5. His Honour referred to Silver Fox and the circumstance that in that case there was not any equivalent to the Civil Procedure Act section 30(4) and observed:
   1. ...In those circumstances, it may well be that evidence of offers made at the mediation or conciliation conference can be admitted.
6. But his Honour went on to state as follows:
   1. But that is not this case, in which s 30(4) applies. The evidence that Volvo seeks to adduce of the offers made at the mediation is evidence of something said in a mediation session. The present costs application is a proceeding before a Court. By reason of Civil Procedure Act s 30(4)(a), that evidence is not admissible, and I reject it.
7. His Honour then went on to deal with the effect or weight to be given to the oral negotiations "lest I be wrong a_nd the excluded evidence was admissible._" This discussion was in the context of whether indemnity costs would be justified. His Honour went on to refer to the circumstances that should be considered if the offer was admissible. Those circumstances included:
   • "the time frame that the offeree had to consider the offer"; and
   • Whether the offer expressly stated that it was made in Calderbank terms;[27] and
   • Whether there was evidence or a permissible inference that the offers made at the mediation "were intended to operate as Calderbank offers", that is, whether it was clear that a "failure to accept the offer made at mediation... would be relied upon in connection with costs...";[28] and
   • Whether consistent with conventional practice, a party has sent another party a Calderbank letter following the completion of "unsuccessful mediation" restating the last offer at the mediation; and
   • Whether the offer was realistically "open for a lengthy period of time The time constraints under which mediations are conducted are yet another reason why, as a matter of policy, different considerations apply to offers made at them than to Calderbank offers or formal offers of compromise under the Rules. This occasions no hardship to the offeror, who can protect its position by a Calderbank letter following the mediation if it wishes to do so"; and
   • Whether the parties evidence, as it was available at final hearing, had been served or available at the time of the mediation.
8. After considering those considerations and on the basis the oral offers from the mediation were admissible, his Honour concluded as follows:
   1. Accordingly, I do not think that this is a case in which the Plaintiffs' failure to accept the offer made at the mediation, in a context in which it was not apparent that it could or would be relied on in connection with costs, was so unreasonable as to justify an indemnity costs order.
9. In effect, his Honour held that because of the provision of the Civil Procedure Act the oral offer was inadmissible but if he was wrong and the oral offers were admissible, then in the circumstances, those oral offers within mediation had very little weight.

June 2007: Askey & Askey: 117(2A)(g): oral offer admitted in evidence

1. In Askey & Askey [2007] FamCA 548 ('Askey'), Watts J at first instance in the Family Court of Australia, on an application for costs after a final decision in property alteration proceedings, made an order that one party pay 80% of the others party/party costs incurred from a few days after an oral offer was made and a few days later rejected. The oral offer, well before final hearing, followed shortly after a detailed written offer by the other party. The oral offer, in a telephone call between solicitors and not in mediation, but I infer, adopted the form of the other parties' earlier written offer, but with a different percentage for the non-superannuation assets and a different percentage of the superannuation payment split. A few days after the oral refusal of the oral offer, a letter was sent, referring to and confirming the details of the by then rejected offer. The letter did not repeat the oral offer. There was no dispute as to the details or terms of the oral offer, or of the confirming letter shortly after the oral offer was rejected. The oral offer did not expressly advert to the offer being relied upon on the question of costs but that point was not apparently taken.
2. His Honours decision in the primary dispute was more generous to the offeree than the oral offer. In other words the offeror received more at the trial than she was prepared to accept in the (rejected) oral offer. His Honour rejected the application for indemnity costs and rejected the submission that the oral offer lacked clarity and he found it was "a clear one".
3. Apparently it was not contended that the oral offer was not admissible, rather that no weight should be place on it because it was not in writing. At [22-26] his Honour relied upon Kilich, and referred the then "newish" Rules as to offers to settle and section 117(2A)(g) as follows:
   1. Counsel for the husband said that no weight could be placed on s.117(2A)(f) FLA because the offer was an oral one and that subsection required an offer "in writing". The effect of the submission was that oral offers needed to be heavily discounted given that s.117(2A) FLA specifically refers to written offers and not oral offers.
   2. That submission is not consistent with what the Full Court (Kay, Warnick and Waddy JJ) said in Kilich and Wood [2003] FamCA 629; (2003) FLC 93-169. In that case the Full Court held at 78,725 that the Court could have regard to an oral offer of settlement pursuant to s 117(2A)(g) which allows for 'such other matters as the court considers relevant' though they cautioned:
      1. However, before we leave the question of the status of oral offers in respect of applications for costs, we stress the likely difficulties associated with the proof of the terms of oral offers. It is highly undesirable that at the end of a trial an application for costs raises yet further factual dispute.
   3. As the Full Court says, written offers are preferable because they eliminate disputes in relation what words had been used when conveying the offer. There is, however, in this case no dispute as to the conversations that took place between the legal representatives of each of the parties.
   4. Rule 10.06 Family Law Rules provides that in a property case each party must make a genuine offer to settle. That rule does not require that the offer be in writing. [29] Neither the husband's written offer nor the wife's oral offer strictly complied with r.10.06(3) but clearly both parties had fulfilled the spirit of r.10.06.
   5. In my view it is clear that the terms of the oral offer of the wife in late May 2006 can be taken into account by me as an important matter under s.117(2A)(g) FLA: "such other matters as the court considers relevant".
4. The then applicable Division 10.1 of the Rules was near identical to the current 2021 Rules.
5. In Askey the oral offer was confirmed in writing shortly after it was made. It was clear. It is readily apparent that, in Askey, to not take into account the oral offer that adopted the details of the other sides recent written offer with merely different percentages and where the different percentages were confirmed in writing shortly thereafter, would have worked an injustice to the offeror and an unfair advantage to the offeree who rejected the offer. Such matters would likely always be a relevant matter. Hence, Askey can be regarded as an example of the sensible flexibility of 117(2A)(g) to avoid injustice by looking at the overall substance of the circumstances rather than only the form.
6. Askey can be regarded as turning on the relevance of the oral offer considered under 117(2A)(g).

2009: Pinot v The Commissioner of Taxation: oral offers in mediation

1. In Pinot Nominees v the Commissioner of Taxation (2009) FCA 1508 ('Pinot Nominees') Siopsis J dealt with an application for costs following a trial on the basis that a party had "a_cted unreasonably...after rejecting the offers of compromise_" the other party had made. The applicant for costs sought to rely upon:
   1. ... Pinot referred to three offers of compromise including two which had been made during the course of the mediation conference referred to above. The third was contained in a "without prejudice" letter dated 23 July 2009, referred to below.
2. The case turned upon the interaction between section 131(2)(h) of the Evidence Act and section 53B of the Federal Court of Australia Act 1956 ('the Federal Court Act'). Section 53B provided, in very similar terms to section 30(4) of the Civil Procedure Act discussed in Azzi v Volvo, as follows:

Section 53B

Evidence of anything said, or of any admission made, at a conference conducted by a mediator in the course of mediating anything referred under s 53A is not admissible:

(a) in any court (whether exercising federal jurisdiction or not); or

(b) in any proceedings before a person authorised by a law of the Commonwealth or of a State or Territory, or by the consent of the parties, to hear evidence.

1. His Honour determined the relationship between the Evidence Act provision and the "anything said in mediation" provision of section 53B the Federal Court Act as follows:
   1. As I have said, the mediation conference in this case was convened pursuant to an order of this court. It follows that s 53B of the Federal Court Act applies and anything said during the course of that conference is inadmissible in this proceeding...

2010: Alexander v ACPA (No 2): offers in writing

1. In Alexender v Australian Community Pharmacy Authority (No 2) [2010] FCA 467 ('Alexander'), apparently relying solely on section 131(2), Tracey J dealt with the issue of whether certain without prejudice offers in writing, including a Calderbank letter, were admissible on the question of costs. Tracey J observed as follows:
   1. Section 131(1) gives effect to a significant public interest in enabling "parties engaged in an attempt to compromise litigation to communicate with one another freely and without the embarrassment which the liability of their communications to be put in evidence subsequently might impose upon them.": see Field v Cmr for Railways [1957] HCA 92; (1957) 99 CLR 285 at 291. The exceptions which are provided for in s 131(2) (including the exception provided for in para (h)), acknowledge the existence of some competing public interests. One such public interest which is advanced by the exception in para (h) is the encouragement of acceptance of reasonable offers of compromise: see ACCC v Black on White [2002] FCA 1605 at [6]. If a party has had the opportunity to settle a matter before trial on terms which were more favourable than those obtained following trial, but has not done so, it is well established that such a failure or refusal might have costs consequences. Once the trial is over the interests which are protected by s 131(1) no longer weigh as heavily as those which are recognised in the exceptions contained in s 131(2).
   2. The exceptions do not, of themselves, render the evidence of the making of the offer admissible. They do, however, mean that the proscription contained in s 131(1) does not apply, thereby leaving it open to the court to have regard to the documentary evidence of what passed between the parties during settlement negotiations: ACCC v Black on White at [6].
   3. The court has, on a number of occasions, admitted such evidence and had regard to it for the purpose of determining appropriate costs orders: see, for example, Marks v GIO Australia Holdings Ltd (No 2) (1996) 66 FCR 128 at 135; ACCC v Australian Safeway Stores Pty Ltd (No 3) [2002] FCA 1294 at [17]-[19]; Pinot Nominees Pty Ltd v FCT [2009] FCA 1508; (2009) 181 FCR 392 at 397-8.

1. Alexander dealt solely with the admissibility question, and not with the weight to be given to offers in writing that were not in the Calderbank form.

2011: Lenova (Costs): a timely offer in writing

1. In Lenova & Lenova (Costs) FamCAFC 141, FLC 93-467 ('Lenova') in discussing consideration of offers in writing, the Full Court Bryant CJ, Coleman & Murphy JJ made the following observation in regard to offers of compromise and costs under the Act:
   1. ... Nevertheless, as the letter makes clear, the husband indicated plainly that, if the appeal proceeded, he would seek to set aside other orders.

...

1. A timely offer in writing genuinely made might, then, be seen as an important part of a limited armoury available to prospective litigants seeking to avoid the costs of litigation. Conversely, where, consequent upon success in an action, a litigant can point to the making of a genuine and timely offer having been made, that offer might be seen as an important (albeit not the only) matter in the exercise of the discretion as to the ordering of costs.

1. I am unable to discern that the discussion in Lenova of "a limited armoury available" included in reference to oral offers in mediation.

1. In the matter or Forsyth v Sinclair (No 2) [2010] VSCA 195 ('Forsyth') in the Victorian Court of Appeal, Neave & Redlich JJA and Habersberger AJA dealt with the admissibility of what was said at mediation in the context of section 131(2)(h) of the Evidence Act and section 24A of the Supreme Court Act 1986 ('Supreme Court Act Vic') in an application for costs of an appeal.
2. Section 24A then provided as follows:

Section 24A Mediation

Where the Court refers a proceeding or any part of a proceeding to mediation, other than judicial resolution conference, unless all the parties who attend the mediation otherwise agree in writing, no evidence shall be admitted at the hearing of the proceeding of anything said or done by any person at the mediation.

1. The Court observed that the effect of section 24A of the Supreme Court Act was equivalent to section 53B of the Federal Courts Act as defined in Pinot Nominees. The Court went on to observe, approving the rationale of Pinot Nominees, as follows:
   1. ...Section 131(2)(h) of that Act clearly allows for "without prejudice" communications between the parties which are relevant to the issue of costs to be admitted into evidence on that issue. However, in our opinion, that general provision must give way to the specific provision concerning mediations.

...

1. In our opinion, this is a sensible outcome in that it leaves the parties free at the mediation to explore all avenues of settlement without the fear that something said or done will be referred to later without their agreement. Positions eventually reached at the mediation can be relied on, if a party wishes to do so, by making an offer of compromise or an offer to compromise the appeal in accordance with O 26 of the Supreme Court (General Civil Procedure) Rules 2005 ("the Supreme Court Rules"), or by making a Calderbank offer, following the mediation. Thus, it would have been preferable, in our opinion, for the respondent to have made its position on the costs of the appeal clear by correspondence after the mediation rather than attempting to refer to what was said at the mediation.

2. This conclusion means that in the present case, the relevant provision was s 24A of the Supreme Court Act and not s 131(2)(h) of the Evidence Act. Thus, the evidence of something that had been said at the mediation was not admissible at the hearing relating to the costs of the appeal unless all the parties who attended the mediation agreed in writing...

...

1. The settlement offers made by the respondent, which it seems were made "without prejudice", would normally not be admitted into evidence, unless s 131(2)(h) of the Evidence Act applied. All of the respondent's settlement offers were made before the trial. Therefore, they are not "relevant to determining liability" for the costs of the appeal and are not excluded by s 131(2)(h) from the statutory prohibition on adducing evidence of settlement negotiations contained in s 131(1) of the Evidence Act. Accordingly, we will put any reference to the respondent's settlement offers out of our mind.

(footnotes omitted & emphasis added)

2016: Harcourts: Offers in writing following mediation

1. In Harcourts WA Pty Ltd v Roy Weston Nominees Pty Ltd (No 6) [2016] FCA 1492 ('Harcourts'), McKerracher J in the Federal Court of Australia dealt with an offer in writing following mediation where section 53B of the Federal Court Act (recited earlier) applied. His Honour observed:
   1. In relation to RWN's submissions as to the inadmissibility of correspondence evidencing settlement negotiations that refer to what occurred at mediation, Harcourts WA submits, and I accept, that s 53B of the FCA Act does not prevent a party from repeating an offer made at a mediation. The Second Settlement Offer was made after the mediation had closed. It was a new offer made outside the mediation process, and it is therefore admissible pursuant to s 131(2)(h) of the Evidence Act as it 'is relevant to determining liability for costs'.
   2. If the offer contained in the Second Settlement Offer had only been made at the mediation then s 53B may have operated to exclude it. But the Offer was made later and merely referenced the mediation. Section 53B does not operate to exclude the admissibility of an offer made outside of the mediation.

...

1. It follows from the above submissions that the time afforded to consider the First Settlement Offer was reasonable, and supported by numerous requests by Harcourts WA that RWN respond to the offer. Further, the First Settlement Offer represented a significant compromise on the part of Harcourts WA. The terms of the offer were clear.

...

1. The terms of the First Settlement Offer were such that it was imprudent for RWN to refuse the offer. The unreasonableness of RWN's response (or, rather, lack of substantive response) is heightened by the fact that RWN did not actually respond to the First Settlement Offer.

2. At the time of the Second Settlement Offer, the legal issues were well - established by the parties and the evidentiary issues had been resolved. The latter point is particularly important. RWN's submission that, by this stage, '[t]here has been a number of interlocutory hearings and considerable costs incurred' is an inadequate answer for RWN's failure to accept the offer. The parties' prospects of success could be assessed with relative certainty. The terms of the offer were clear. Once again, RWN provided no substantive response to this offer. Accordingly, in my view, it was also imprudent for RWN to refuse the Second Settlement Offer.

(emphasis added)

1. Despite those considerations, the decision as to costs turned on other issues apart from the written offers. But, it is an example that the weight to be given to an offer in writing following mediation, in part, turns on the extent that the offeree is fully informed about the case and the time available for consideration of the offer.

Conclusion as to oral statements in this mediation

1. Section 8 of the Evidence Act was relied upon by counsel for the Wife and provides as follows:

Section 8 Operation of other Acts etc.

(1) This Act does not affect the operation of the provisions of any other Act, other than sections 68, 79, 80 and 80A of the Judiciary Act 1903 .

(2) This Act does not affect the operation of regulations that:

(a) are made under an Act other than this Act; and

(b) are in force on the commencement of this section.

(3) This Act has effect subject to the Corporations Act 2001 and the Australian Securities and Investments Commission Act 2001.

1. Hence it is difficult to see how section 131(2)(h) was intended to or could affect the operation of the specific provision of the Family Law Act 1975 dealing with those matters.
2. In Marks v GIO and ACCC v Safety (No 3) and Silver Fox the only applicable legislative provision was section 131(2)(h) of the Evidence Act and the oral negotiations were admissible. It is clear enough that absent other legislative provisions, that the repeated interpretation of section 131(2)(h) by superior Courts was that offers, including an oral offer, whether within or without mediation may be admissible if "relevant". The law compels me to regard those statements of the law as highly persuasive and to be followed unless plainly wrong.
3. In Rajski, Azzi v Volvo, Pinot Nominees, Forsyth and Harcourts the general provision of section 131(2)(h) was found to be overridden or subject to the specific provision relating to the admissibility of mediation confidentiality as expressed in the particular jurisdiction that the primary dispute dealt with. Those decisions could be regarded as an example of the application of the cannon or maxim of statutory interpretation of "g_eneralia specialibus non derogant_" which can be described as "_where there is a conflict between general and specific provisions, the specific provisions prevail_s", see Statutory Interpretation in Australia DC Pearce 10th Ed Lexus Nexus ('Pearce 10th Ed'). Azzi v Volvo & Forsyth apply that maxim. I am satisfied that the same principle is applicable where there is a legislative provision or scheme applicable to costs and/or offers in the jurisdiction of the primary dispute.
4. Hence I am satisfied, by the weight of authority, that where there is a specific provision of a jurisdiction relating to confidentiality of offers and/or mediation and/or costs, those provisions override the general provision of section 131(2)(h).
5. As with the specific legislation in Rajski, Azzi v Volvo, Pinot Nominees, Sinclair & Forsyth (No 2) and Harcourts, I am satisfied that the general provision of section 131(2)(h) of the Evidence Act is subject to and qualified by the specific scheme of costs set out in section 117/114UB of the Act. That is, that the reference to communication, and hence, oral communication, in 131(2)(h) when considering costs is subject to the provisions of the Family Law Act 1975, that is, section 117/114UB. Hence the oral offers in mediation in this case do not squeeze through into admissibility by weight solely of section 131(2)(h).
6. Were there to be a provision protecting mediation privilege in the Act equivalent to:
   • section 110P(4) & (5) of the Supreme Court Act NSW; and
   • section 24A of the Supreme Court Act Vic; and
   • section 29(2) & 30(4) of the Civil Procedure Act NSW; and
   • section 53B of the Federal Act;

and as discussed in Rajski, Azzi, Pinot Nominees, Forsyth and Harcourt, the answer to the question on this point in this case would be more straight forward. Curiously, such a provision is contained in the Act governing this Court. Section 168 & 169 of the Federal Circuit and Family Court of Australia Act 2021 ('FCFCOA Act') provides:

Section 168 Scope of Division

This Division applies to proceedings in the Federal Circuit and Family Court of Australia (Division 2) other than family law or child support proceedings.

Section 169 Mediation

(1) The Federal Circuit and Family Court of Australia (Division 2) may, by order, refer proceedings in the Court, or any part of them or any matter arising out of them, to a mediator for mediation in accordance with the Rules of Court.

(2) Subsection (1) has effect subject to the Rules of Court.

(3) Referrals under subsection (1) to a mediator may be made with or without the consent of the parties to the proceedings.

(4) Evidence of anything said, or of any admission made, at a conference conducted by a mediator in the course of mediating anything referred under subsection (1) is not admissible:

(a) in any court (whether exercising federal jurisdiction or not); or

(b) in any proceedings before a person authorised by a law of the Commonwealth or of a State or Territory, or by the consent of the parties, to hear evidence.

(5) A mediator has, in mediating anything referred under subsection (1), the same protection and immunity as a Judge of the Federal Court has in performing the functions of a Judge.

1. Curiously, as can be seen, this provision does not apply to property or financial matters under the Act. Perhaps it should but it doesn't.
2. I do not accept the contention of counsel for the Wife that to be relevant, and hence admissible, that the "offer" must be capable of acceptance so as to determine the proceedings. As recited above, Rule 4.06 provides that a party "may make an offer to another party to settle all or part of a proceeding" and that would include all or part of any question or issue in the proceedings such as the quantum of the property settlement. That would be so notwithstanding that the terms or timing of the payment of the property settlement remained in dispute. The public policy considerations that commend genuine negotiation and settlement of proceedings, including consideration of offers to settle in writing, also apply to settlement of a part of the dispute or the proceeding.
3. But I do accept part of the contentions implicit in that submission. This is, offers should have real clarity so that the offeree can grasp exactly what is being offered and to be admissible an offer must be relevant to the costs application.
4. Neither party made submissions to me to the effect that to conduct a cost proceeding by reference to matters that were on the plain reading of the mediation agreement proscribed should be prohibited by the operation of section 135 of the Evidence Act recited later in these reasons. Nonetheless, I was and am troubled by the costs application seeking to take into account such a matter, that is something said at the mediation contrary to the plain words of the mediation agreement.
5. I acknowledge the words of clause 10 of the mediation agreement of "unless required by law" clearly exempt anything said where a crime or unconscionable conduct or conduct involving section 79A of any sort occurred within the mediation. I do not accept the submission that the words "unless required by law" was a reference to, and invoked, one of the exemptions to settlement negotiation privilege of section 131(2)(h) at the option of one party.
6. Neither party made reference to the law of evidence as it relates intra-parties. It is settled law that where a party does not object to evidence that would otherwise be inadmissible then absent the matter being raised by the Court, that evidence would be admissible. Whether the otherwise inadmissible evidence was accepted or given any weight would be a different matter.
7. In the matter of Commonwealth v Verwayen (1990) 170 CLR 394 ('Verwayen'), a plaintiff who had been injured in a tragic collision between HMAS Voyager and HMAS Melbourne back in 1964 ('the Voyager tragedy') had issued proceedings seeking damages for personal injury many years later and well outside the Limitations of Actions Act 1958 (Vic) ('Limitations Act') The Commonwealth admitted liability, but the question of damages remained in issue. Initially the Commonwealth did not plead that the action was barred by the Limitations Act. Both before and after it filed its defence, the Commonwealth stated that it had adopted a policy not to contest liability and to not plead the Limitations Act in Voyager tragedy cases. About a couple of years later, the Commonwealth changed its mind and filed an amended defence raising matters previously forsaken including the Limitations Act. The Judge at first instance upheld the Commonwealth's position and dismissed the action. The Full Court of the Supreme Court of Victoria allowed an appeal on the basis that the Commonwealth was estopped from resiling from its promise not to plead the Limitations Act.
8. The High Court dismissed the appeal and the majority Deane, Dawson, Gaudron and Toohey JJ found by operation of the doctrine of estoppel by conduct, that the law would not permit an unconscionable departure by one party from the subject matter of an assumption that had been adopted by the other party as the basis of some relationship, course of conduct, act or omission that would operate to the other parties detriment if the assumption was not adhered to for the purpose of litigation.[30]
9. In this case, clause 10 of the mediation agreement is part of the relationship of the parties within the mediation. That is that anything said would not be relied upon subsequently, and I infer, including on the question of costs.

Section 135 & Verwayen not taken into account

1. In this case the parties did not raise the issue of whether, assuming oral statements within the mediation were otherwise admissible on the question of costs, the parties should be held to their agreement and the basis upon which the mediation was conducted. Nor did the Court raise that matter with the parties. Accordingly, that matter not having been raised, I do not take such a proposition into account. That should not be regarded as a criticism as the Court relies upon the parties and their counsel to take such points as each regards as dispositive of the proceedings rather than taking every point. Similarly, section 135 of the Evidence Act was not raised before me, nor did I raise it with the parties, and hence I did not take it into account.

Does the case turn on section 131(2)(h) or the Family Law Act?

1. Following the logic and ratios of Rajski, Azzi v Volvo, Pinot Nominees, Forsyth and Harcourts the issue of whether an oral offer in mediation is admissible, although permitted by section 131(2)(h), is governed by the specific legislative scheme of the law of the primary dispute. In this case that specific legislative scheme is the Family Law Act sections 117/114UB & 117C and the FCFCOA (Family Law) Rules 2021 and the applicable authorities ('the Family Law Act scheme of offers to settle'). The answer to the oral offers controversy, consistent with those five general law authorities referred to, is within the Family Law Act scheme of offers to settle. Those applicable authorities include Kilich and Askey. Or to use the language of Forsyth, the relevant provision is the Family Law Act scheme of offers to settle not section 131(2)(h) of the Evidence Act.
2. I am bound by the Full Court ratio in Kilich. The first instance decision of Askey must be regarded as highly persuasive and to be followed unless clearly wrong. The relevance of the avoidance of the injustice (that a strict reliance on sections 117(2A)(f) and 117C would have wrought) by the application of the flexibility of 117(2A)(g)/114UB(3)(g), in Askey is compelling. Although decided in 2006, the substance of the current legislative provisions and the FCFCOA (Family Law) Rules 2021 about costs and offers to settle are near as identical to those applying in 2006.
3. Although only of limited assistance, that Parliament has seen fit to reenact in identical form (save as to section numbers) the provisions of section 117114UB after Kilich and after Askey reinforces my confidence that I should follow the guidance of Kilich and of Askey when considering oral offers and section 117(2A)(g)/114UB(3)(g).

Was the reliance on the oral offers contrary to the mediation agreement?

1. I satisfied that, in the circumstances, the reliance on the oral offers within the mediation was contrary to the mediation agreement. Without prejudice privilege has never been absolute and would not be a cover for a threat, or other crime, or unconscionable behaviour but those extreme exceptions don't apply here. That reliance of oral offers was contrary to the mediation agreement is not determinative of admissibility but is a significant matter to be taken into account.
2. I am bound by the ratio in Kilich and well persuaded by the ratio in Askey. In those cases the oral offers were relevant in the circumstances of the case and hence admissible by 117(2A)(g). I am not satisfied that in the circumstances of this case the oral offers within the mediation are relevant to the section 117 discretion. I am not satisfied those oral offers are relevant because:

(1) The adduction into evidence of the oral offers within mediation is directly contrary to the provisions of the mediation agreement upon which basis the mediation was conducted; and

(2) The offers were open for a very short period, that is, until the next offer was made or at the latest until the end of the mediation; and

(3) The form of the offers to the extent they can be discerned did not alert the offeree to the fact that the offeror intended to rely upon the offer, and a refusal of the offer, as relevant to the question of costs at the end of the final hearing; and

(4) The terms upon which the offers were made is disputed and I cannot determine what, if any, terms accompanied the quantum offers; and

(5) The scheme of the Rules of Court 4.06 - 4.12 command and draw attention to offers in writing and the Husband did not make any offer in writing even when reminded of how settlement offers were to be conducted when the Wife served her Calderbank offer; and

(6) It was within the power of the party seeking to rely upon the oral offer to have converted or repeated, that offer into an offer in writing after the mediation and over the months of February, March, April, May and June of 2024; and

(7) No special circumstance was pointed to that would explain why the clearly defined and much preferred pathway for offers, that is offers in writing, was not adhered to.

1. In those circumstances I am not satisfied that the oral offers are relevant. Hence they are not admissible, or to be had regard to, within the scheme of section 117/114UB and Rule 4.06 - 4.12.

But if oral offers in mediation are admissible, what then?

1. If I am wrong, and the oral offers within the mediation in this case are admissible, it is convenient at this point to deal with the weight to be given to the oral offers.

The terms? And how long was the offer open for?

1. In this case the terms upon which the offers as to quantum were made, if any, are unclear. Further, there is no evidence or suggestion that the last of those offers as to quantum, not disputed to have been made, was open for acceptance indefinitely. In the absence of any evidence of how long such an oral statement of quantum was to be open for, I infer that the oral offer was open until it was rejected or not accepted and at the very latest, until the end of the mediation. Ordinarily the point of an offer to settle is for the offeree to think long and hard about the consequences to refuse the offer. Not such time for reflection accompanied these offers.
2. In this case there is no evidence that the offer was communicated in the form, or understood by the offeree to be, that the oral offer would be relied upon on the question of costs. That an offer is intended to be relied upon in the question of costs, and so communicated at the time of the offer, is an important consideration in determining the weight to be given to the offer. The public policy imperative of genuine negotiations being conducted with the intention of the offeror, and the knowledge of the offeree, that an unreasonable refusal of a sensible offer would influence costs is an important matter.
3. In the circumstances, like Brereton J in Azzi v Volvo, in the absence of evidence about this issue, I am not prepared to infer that any of the oral offers so communicated were either expressly or implicitly accompanied by such a concept.

1. By Rule 4.11(2)(a) the parties were required to "make a genuine offer to settle" within 28 days of the mediation.[31] The 28 day time prescribed by rule 4.11(2)(a), 28 February 2024, came and went without either party serving an offer in writing. However, roughly two months after the due date (28 February 2024) the Wife filed a comprehensive offer in writing referring to the well known authorities of Calderbank[32] and Hazelden's Chicken Farm.[33] The formal and transparent offer was contained in a detailed five page letter and a detailed eight page minute of proposed final orders. The letter of offer described the asset pool and overstated the asset pool by $790,000, with the same double counting error persisted in until the first day of the final hearing about two months later. The letter of offer proposed that the Wife receive a property settlement in the total sum of $3.2 million dollars composed of $1.2 million within 60 days of acceptance and a further $2 million a further 60 days later with penalty interest to accrue after 120 days, that is providing for a total payment in four months from acceptance of the offer.
2. Because of the overstatement by double counting in the asset pool, the Wife calculated and asserted in the offer that upon the acceptance of her offer she would be receiving about 44.5% of the net asset pool. Because of the double counting aspect of the overstatement of the asset pool, the offer was actually equivalent to 49.84%.[34] The offer was to be open for 28 days, that is, until 30 May 2024. The Wife's offer was well before the final hearing and was in plenty of time for the Husband to accept it.
3. The Wife's late Rule 4.11 or Calderbank offer was well wide of the outcome of the final hearing. However, it is significant that, in a timely manner, it demonstrated to the Husband the proper and sensible way to proceed with an offer of settlement intended to settle property proceedings. It came with a clear statement of how that offer in writing would be pressed to be taken into account on the question of costs following the final hearing. That practical demonstration of the proper way to proceed and the potential cost consequences of an offer to settle in writing was apparently unheeded. Instead, the Husband now relies upon on alleged oral offers made in the course of mediation, apparently made without a statement that they would be relied upon on the question of costs and only open until the next offer was made or the end of the mediation and contrary to the plain words of clause 10 of the mediation agreement and where accompanied "terms" were not clear.

No offer in writing or otherwise in accordance with the Rules by the Husband.

1. Despite having participated in mediation and the compulsion of Rule 4.11 of the Rules (recited above), the Husband did not make an offer to settle at any time following the mediation. Nor was any explanation why not attempted. Nor was any application to dispense with Rule 4.11(2)(a) made. Nor did the Wife's offer in writing, complying with the spirit of Rule 4.11, prompt the Husband to make an offer in writing.
2. For these reasons, in the event that I am wrong and the offers in mediation in this case are relevant, and hence admissible on account of section 117(2A)(g) and/or Kilich and Askey, I do not place any, or any significant weight upon those offers. To do so in the circumstances of this case, would be antithetical to the scheme of consideration of offers of settlement in the provisions of section 117/114UB of the Act and Rules 4.06 - 4.12 of the Rules and work an injustice to the Wife. Any injustice to the Husband could have been overcome by mere adherence to the Rules and/or a timely offer in writing.

1. In this case neither party was wholly unsuccessful in the outcome of the final hearing. And the Wife achieved a result whereby she obtained an order for a further payment substantially greater than the outcome pressed by the Husband throughout the trial, and achieved an outcome whereby she was permitted to remain in the former matrimonial home until she received her property settlement, and an outcome whereby the total payment due to her was to be made at the expiration of six months from the orders, not 12 months, as the Husband pressed.
2. In all of those circumstances, I am not satisfied that it is just to depart from the general starting point that each party bear their own costs of the proceedings.

1. As to the Wife's application (not addressed in oral submissions but contained in the written submissions and not abandoned) to be paid the costs of this unsuccessful costs application, I have dismissed that application. I do so for the reasons that the appearance and attendance before me on the costs hearing was necessitated by not only the costs application, but the substantial dispute as to the default provisions. Those matters were heard on the same day.
2. Some further expense was incurred by the Wife in opposing the unsuccessful costs application of the Husband. But in regard to the default provisions dispute, the Wife was not wholly unsuccessful, but was largely unsuccessful in obtaining any further provisions, save for those as pressed and ultimately agreed to by the Husband.
3. In those circumstances I am not satisfied it is just to depart from the general position that each party should bear their own costs in regard to the unsuccessful costs application of the Husband.

I certify that the preceding two hundred and twenty-four (224) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

[1] Miratos & Miratos [2025] FedCFamC2F 82 ('Miratos'). Those reasons, and these, adopt the description of the parties as 'Husband' and 'Wife. These reasons also adopt the same nomenclature of items of property as the reasons.

[2] Described as 'the Wife's keep' in the reasons at [145].

[3] The Wife has to move out of the FMH to permit the settlement of its sale

[4] See Division 3 - Transitional Provisions, Section 15 - Application of amendments relating to costs, of Schedule 4 of the Family Law Amendment Act 2024.

[5] Section 114UB(3)(c), the equivalent to 117(2A)(c) in addition to the matters covered in the previous provision has added to it under the conduct of the parties, "in relation to their duty of disclosure under subsections ...". But otherwise save for juxtaposition of various words and references to the provisions of the legislation as it now is, the provisions are close to identical.

[6] Authorised by section 123(1)(g) of the Act.

[7] In reliance upon the observations of the Full Court of the Family Court of Australia in Redmond & Redmond (Costs) [2014] FamCAFC 55 and Prantage & Prantage [2013] FamCAFC 105 and the authorities there referred to.

[12] Email to my Chambers on 28 April 2023.

[13] Email to Chambers by Landers and Rogers.

[14] It was alleged in submissions and on affidavit that the Husband had made this third offer.

[15] See J D Heydon "Cross on Evidence" 12th Edition, Lexis Nexus Butterworths at 25.306 and the authorities cited therein.

[17] That is "such other matters as the court considers relevant."

[18] 12th Edition consolidated on 14 January 1991

[20] Section 79A(1) of the Act then and now, provided that: Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that: (a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance;

[21] For practical purposes, the New South Wales Evidence Act provision as to settlement negotiations and the Commonwealth Act provision are the same.

[22] That is section 117(2A)(f) & (g) recited above.

[24] See the discussion in Statutory Interpretation in Australia, Pearce D.C., 10th Ed., Lexis Nexis ('Pearce 10th Ed') [4.42]

[25] Act No 46 of 2006 referred to the later in these reasons had not yet been assented to in February of 2006.

[26] There is no material difference between section 131 of the Commonwealth and NSW Evidence Acts.

[29] The proposition that Rule 10.06, in Division 10.1.2, is not governed by Rule 10.01(3) might surprise some readers of Division 10.1. and the reference to "all offers to settle" in the note. It is unnecessary in this decision to determine whether this observation in part of ratio decidendi or obiter dicta.

[30] This description of the proceedings and ratio is taken from the headnote at (1990) 95 ALR 321 at 321.

[31] And if, Rule 4.06(3)(a) governs Rule 4.11(2)(a) offers to settle those offers are required to be in writing. It maybe that the observations in Askey about the mandatory offers after conciliation regime not being required to be in writing were obiter dicta. Nothing turns on that in this case.

[32] Calderbank v Calderbank [1975] 3AII ER 33

[33] Hazelden's Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) VSCA 298

[34] $3,200,000 + $229,770 = $3,429,770 divided by the pool as later agreed of $6,880,550 = 49.84%.