CM and National Disability Insurance Agency - [2024] AATA 3308

CM and National Disability Insurance Agency [2024] AATA 3308 (21 August 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s):2022/5756
2023/1743
Re:CM
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

AndKT
OTHER PARTY

INTERLOCUTORY DECISION
Tribunal:Deputy President Mischin
Date:21 August 2024
Place:Perth

The Tribunal DIRECTS that:
(a)Within 14 days the Applicant file with the Tribunal and serve on the Respondent and the Other Party a copy of all Family Court Orders he considers relevant to the question of the use the Tribunal may make of documents OP4, OP5 and OP9;
(b)Subject to the Tribunal receiving further information, documents OP4 and OP5 ought not to be received into evidence by the Tribunal, as potentially being subject to a ‘Harman’ undertaking to the Family Court of Australia;
(c)Subject to further information and relevance, document OP9, and the Affidavit to Support Application for Intervention Order (Domestic) sworn by the Other Party on 18 May 2020, may be received into evidence by the Tribunal.

......................[Sgd]..................................................
The Hon. Michael Mischin, Deputy President
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – Interlocutory application – documents filed by Other Party – whether subject to Harmon undertaking – whether should be received by Tribunal
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Children) Rules 2013 (Cth)
CASES
Angas Securities Ltd and Western Australian Planning Commission [2021] WASAT 134
Bruce v Victorian WorkCover Authority [2022] FedCFamC2G 106
Chin v Comcare (2017) 160 ALR 176
Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10
Gower v Australian Capital Territory [2019] AATA 3947
Hearne v Street (2008) 235 CLR 125
Otter Gold Mines Ltd v McDonald (1997) 76 FCR 467
Porter v Australian Broadcasting Corporation (No 2) [2021] FCA 1036
Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 3 All ER 878
Sandy v Yindjibarndi Aboriginal Corporation [No 5] [2020] WASC 470
Skewes v City of Rockingham [2014] WASAT 14
Thornton v Workcover Corporation of South Australia [2009] FamCA 449
SECONDARY MATERIALS
Administrative Appeals Tribunal General Practice Direction, Part 5
REASONS FOR INTERLOCUTORY DECISION
Deputy President the Hon. Michael Mischin
21 August 2024
BACKGROUND

The issue before the Tribunal is whether, and to what extent, certain documents filed by the Other Party, or supplied by the Other Party to the Respondent, should be received into evidence by the Tribunal.
The Applicant is the father of two children, to whom I shall refer as ‘Child 1’ and ‘Child 2’, now ten and eight years old respectively. Both children are participants in the National Disability Insurance Scheme (NDIS).
The Other Party is the mother of the children.
The Applicant and the Other Party are estranged and, at the time of these proceedings before the Tribunal, various legal actions were in progress between and involving them, materially a parenting order proceeding in the Family Court of Australia (Family Court) and an Intervention Order (Domestic) proceeding in the Magistrates Court of [redacted].
The Tribunal has before it two applications for review lodged by the Applicant father, 2022/5756 (the First Application) and 2023/1743 (the Second Application).
By way of the First Application, lodged on 12 July 2022, the Applicant seeks review of a decision made on 11 July 2022 by a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (NDIA) affirming a decision made on 8 April 2022, under section 75(3) of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act) that the mother have sole parental responsibility for Child 2.
The Second Application, lodged on 20 March 2023, seeks review of a deemed decision, taken to have been made on 14 March 2023, affirming a decision under section 75(3) of the NDIS Act that the mother have sole parental responsibility for Child 1.
Both the decision of 11 July 2022 and the deemed decision of 14 March 2023 are decisions under section 100(6) of the NDIS Act that are reviewable by the Tribunal pursuant to section 103 of that Act.
In respect of both applications for review, the Applicant contends that:
The delegate of the CEO has failed to consider the full range of material that they are required to; has given inappropriate weight to the material before the decision maker; and has relied on powers beyond that of which the delegate has, in order to make a decision on review. This has led to a wholly unreasonable decision in the circumstances.
Section 74 of the NDIS Act prescribes, materially, that if the Act requires or permits a thing to be done by or in relation to a child, the thing is to be done by or in relation to the person who has, or the persons who jointly have, parental responsibility for the child.
Section 75 of the NDIS Act defines who has parental responsibility under the Act, materially in this instance, the child’s parents. Section 75(3) provides that if this would result in more than one person having parental responsibility for a child, the CEO may determine that one or more of those persons have parental responsibility for the child for the purposes of the Act.
The National Disability Insurances Scheme (Children) Rules 2013 (Children Rules), made under section 75(4) of the NDIS Act, sets out requirements with which the CEO must comply, criteria that the CEO is to apply, and matters to which the CEO is to have regard, in deciding whether to make such a determination.
Rule 4.8 reflects the discretion vested in the CEO under section 75(3) of the NDIS Act.
The Children Rules introduce the concept of a ‘child’s representative’. It is not a term used in the NDIS Act. However, by operation of the Children Rules, it is the person who is regarded as having parental responsibility for the child and, so, act for the child in the way described in section 74(1)(a) of the NDIS Act. The NDIA’s decision of 11 July 2022 and deemed decision of 18 March 2023, that the Other Party is to have sole parental responsibility for the child participants, means that the Applicant would not be the participant children’s representative for the purposes of the NDIS Act.
MATERIAL BEFORE THE TRIBUNAL AND APPLICANT’S OBJECTIONS
The material filed with the Tribunal includes:
(a)the T-Documents filed on 26 July 2022 and Supplementary T-Documents filed on 24 April 2023 in the First Application;
(b)the T-Documents filed on 17 May 2023 in the Second Application; and
(c)a bundle of further evidence filed by the Applicant on 22 May 2023.
On 17 April 2023 the Tribunal made confidentiality orders under section 35(4) of the Administrative Appeals Tribunal Act 1975 (AAT Act), requiring the redaction of elements of Documents ST1 and ST2 in the Supplementary T-Documents filed in respect of the First Application.
On 2 June 2023, the Tribunal ordered that the First Application and Second Application be linked and heard together and, subject to relevance, evidence lodged in any one application be taken as evidence in the other.
On 11 December 2023, the Tribunal confirmed that until further order, evidence lodged with or otherwise given to the Tribunal in any one application and subject to confidentiality orders under section 35(4) of the AAT Act must not be disclosed to the Applicant except when subject to the redactions directed by the Tribunal.
On, and since, 19 September 2023, the Other Party provided the following documents to the Tribunal and the Respondent (the OP Documents):
(a)OP1: an email from the OP to the Applicant with the subject heading ‘Response to various issues you raised’ and dated 25 January 2022;
(b)OP2: email correspondence between the Other Party and the Applicant with the subject ‘Kids medical update’, bearing dates from 6 February 2022 through to 18 February 2022;
(c)OP3: an Order of the Family Court of Australia relating to the confidentiality of certain information received by the Court, made 8 August 2023;
(d)OP4: a ‘Psychological Report’ of Clinical Psychologist AC of [redacted], dated 30 September 2021;
(e)OP5: a ‘Review Psychological Report’ of Clinical Psychologist AC of [redacted] dated 21 July 2022;
(f)OP6: a Department for Child Protection ‘Safety Plan’ for the period 30 June to 31 July 2023;
(g)OP7: a Department of Child Protection ‘Safety Plan’ for the period 31 July to 31 August 2023;
(h)OP8: a Department of Child Protection ‘Safety Plan’ for the period 31 August to 30 September 2023;
(i)OP9: a ‘Children’s Contact Visits Report’ of Registered Psychologist FM, dated 5 May 2021;
(j)OP10: a ‘Subpoena to Attend to Give Evidence’ in the Magistrates Court of [redacted], directed to the Other Party and filed 16 June 2023; and
(k)OP11: a letter from Department for Child Protection to the Other Party, dated 26 October 2023.
Since then, the Tribunal has also been provided with a copy of a Final Order made by the Family Court on 1 February 2024 in respect of the proceedings between the Applicant and the Other Party. It is not necessary to say more about that order at this time, although it will be relevant to the merits of the decisions under review, as it provides that the Other Party, the mother, has sole parental responsibility for the children subject to forthwith notifying the father upon making any long-term decisions in relation to them.
Following the Directions Hearing on 7 December 2023, the Tribunal provided a copy of documents OP1 to OP11 to the Applicant, who filed written submissions on 12 January 2024 opposing the use by the Tribunal of certain OP Documents and a document reproduced in the First Application’s Supplementary T-Documents and the Second Application’s T-Documents. The Respondent also filed written submissions on 31 January 2024. No submissions were received from the Other Party.
So far as the OP Documents are concerned, the Applicant’s objection is confined to the admission of OP4, OP5 and OP9. He does not oppose, but does not consent, to the reception of the other OP Documents.
Otherwise, the Applicant has raised objection to the use in the Tribunal of a document intituled ‘Affidavit to Support Application for Intervention Order (Domestic)’ (the Affidavit), sworn by the Other Party on 18 May 2020 for filing in the Magistrates Court [redacted]. It is reproduced in the First Application Supplementary T-Documents at pages 150-162 as an attachment to an email, ST1, from the Other Party to Early Childhood Early Intervention [redacted] dated 3 February 2022. The Affidavit also appears as T2 in the Second Application T-Documents at pages 9-21.
The basis of the Applicant’s objection in respect of OP4, OP5, OP9, and the Affidavit in ST1 and at T2, is that the documents were subject to what is commonly described as a ‘Harman undertaking’ restricting their being used for purposes and in proceedings other than those for which they were intended, and so preventing their use in the matters before the Tribunal unless the documents are released from that undertaking.
The Respondent did not make submissions as to whether the implied undertaking applied to the documents in question and whether they should or should not be received by the Tribunal. However, the Tribunal appreciates the Respondent’s assistance in summarising the relevant law and principles in its submission.
RELEVANT LAW
The implied undertaking is an obligation owed to the Court that a party will use documents or information it obtains through compulsion in a proceeding only for the purposes of that proceeding.[1]
[1] (2008) 235 CLR 125 at [105]-[108] (Hearne).
In Hearne v Street, the majority of the High Court summarised the principle in the following terms:[2]
Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits.
[2] Hearne at [96].
The underlying principle of the implied undertaking is that ‘a party who obtains the production of documents or the disclosure of information for a particular purpose cannot use the documents or information for a “collateral or ulterior purpose”’.[3] The implied undertaking applies equally to documents produced under compulsion in Tribunal proceedings.[4]
[3] Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 36 (Esso Australia); Chin v Comcare (2017) 160 ALR 176 at [16].
[4] Otter Gold Mines Ltd v McDonald (1997) 76 FCR 467 at 471-473; Skewes v City of Rockingham [2014] WASAT 14 at [16]-[18]. See, also Administrative Appeals Tribunal General Practice Direction Part 5 at 5.2 to 5.4.
The obligation under the implied undertaking ceases when documents have been admitted into evidence and have entered the public domain,[5] because once documents have been tendered or read in open proceedings they lose their confidentiality and the protection of the implied undertaking.[6]
[5] Porter v Australian Broadcasting Corporation (No 2) [2021] FCA 1036 at [19]; Gower v Australian Capital Territory [2019] AATA 3947 at [26].
[6] Esso Australia at 32 to 33; Sandy v Yindjibarndi Aboriginal Corporation (No 5) [2020] WASC 470 at [17]-[34].
It is for the Court, or the Tribunal, to which the documents have been produced to release a party from the implied undertaking.[7] The test for whether a party should be released from the implied undertaking in relation to a document is whether ‘special circumstances’ exist which affords a reason for modifying or releasing the obligation.[8] It has been accepted that a Court is able to exercise its discretion to release parties from the implied undertaking to allow specific documents to be used in Tribunal proceedings.[9]
[7] Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 3 All ER 878 at 885.
[8] Hearne at [107]; Angas Securities Ltd and Western Australian Planning Commission [2021] WASAT 134 at [47].
[9] see Thornton v Workcover Corporation of South Australia [2009] FamCA 449 at [81]-[99], and Bruce v Victorian WorkCover Authority [2022] FedCFamC2G 106.
CONSIDERATION
The Applicant’s contention that OP4, OP5 and OP9 were subject to an implied undertaking is founded on several orders he says were made by the Family Court during proceedings involving him and the Other Party. In support of this he quotes in his submissions extracts from three orders as follows:
(a)An Order made on 25 March 2021 that:[10]
[10] Applicant’s Written Submissions paragraph 5. A copy of the full order appears in the First Application Supplementary T-Documents as part of ST1 at pages 163-168 and in the Second Application T-Documents as T5 at pages 28-33.
2.The parties do all such things as may be reasonably required to enable a Family Assessment to be carried out with respect to the competing applications for parenting orders before the Court, with such Assessment and the Report arising thereafter:
a.To include interviews with the children and, at the discretion of the expert, observed interaction of the children with any relevant adult person in addition to the parties as the expert considers appropriate;
b.To be carried out by Ms [AC] of [redacted]…
This, presumably, is said to have resulted in OP4.
(b)An Order made on 26 March 2021:[11]
1.That until further order the children [Child 2] and [Child 1] shall spend time with the father as follows:
a.For a period of 8 visits commencing on 27 March 2021 from 12noon [sic] until 4.00pm on Saturday or Sunday of each week with such time to be supervised by Mr [FM]…
This, presumably, is said to have resulted in OP9.
(c)An Order made on 1 February 2022 that:[12]
1. An updated Family Assessment Report be prepared by Ms [AC]…
This, presumably, is said to have resulted in OP5.
[11] Applicant’s Written Submissions paragraph 6. A copy of the full order appears in the First Application Supplementary T-Documents as part of ST1 at pages 169-173 and in the Second Application T-Documents as T6 at pages 34-38.
[12] Applicant’s Written Submissions paragraph 7. A copy of the full order appears in the First Application Supplementary T-Documents as part of ST1 at pages 179-185 and in the Second Application T-Documents as T8 at pages 42-48.
It is necessary to consider the nature of the documents in some further detail.
OP4 is a 22-page report prepared by Clinical Psychologist AC of [redacted] and dated 30 September 2021. It is headed ‘CONFIDENTIAL’ ‘PSYCHOLOGICAL REPORT’ and describes its origins in a paragraph headed ‘REASON FOR REFERRAL’ as follows:
An assessment of parenting arrangements in relation to [Child 1] and [Child 2] was ordered by the Federal Circuit Court on 25.3.21. The referral was made by Ms [MS], solicitor for the mother Ms [KT], and Ms [CT], solicitor for the father Mr [CM].
Among the information it draws upon for its content and professional assessment and opinion are interviews with both parents and the two children, affidavits, and other documents. Although not specifically stated, I infer that at least some of the materials supplied on behalf of the parties to Ms AC were copies of affidavits and other evidence that had already been filed in the Family Court.
OP5 is a 19-page report prepared by Ms AC and dated 21 July 2022. It is headed ‘CONFIDENTIAL’ ‘REVIEW PSYCHOLOGICAL REPORT’ and describes its origins in a paragraph headed ‘REASON FOR REFERRAL’ as follows:
[Child 1] and [Child 2] were referred for a review family assessment by Ms [CT], solicitor for the father Mr [CM] and Ms [MS], solicitor for the mother Ms [KT]. The review assessment was ordered by the Federal Circuit and Family Court of Australia (FCFCOA) on 1.2.22 in preparation for a trial scheduled to take place in late August.
The sources upon which it draws are of a similar character as in OP4, but more recent than those used for the earlier assessment.
OP9 is a 40-page report of Registered Psychologist FM and dated 5 May 2021. It is headed ‘Confidential’ ‘Children’s Contact Visits Report 3 of 3’. It goes on to relate as follows:
Referral Details
1. I was named in a Court Order made by Her Honour Judge [redacted] on 25 March 2021 in the Federal Circuit Court of Australia at [redacted] to provide Children’s Contact Supervision in this matter for four hours per week.
2. This Report was requested by Ms [KT] due to concerns she had regarding the Saturday 10 April 2021 visit.
Production of this Report
3. This Report is produced simultaneously by separate email to Mr [CM] and Ms [KT].
Confidentiality
4. This Report is written in the context of a Family Law parenting dispute before the Federal Circuit Court of Australia. It is therefore likely that this Report will need to be considered by all the legal practitioners and those incidental to the Federal Circuit Court process that are involved in this case. Therefore, this Report is written for the parties, their legal representatives and the Federal Circuit Court of Australia.
5. Both parties have given their informed and written consent by signing my Terms and Conditions in the following terms:
I understand and give my written consent that observations made by [FM] during supervision will be documented in a court report.
6. It is important not to provide this Report to those who do not have a direct role in this Family Law dispute. Therefore, it is not appropriate for this Report to be shown or provided to family members, friends, children or other persons without my express written consent. Please contact me if you wish to share this Report with a third party.
(Original emphasis.)

Among the information it draws upon for its content and professional opinion are conversations with the parents and children, and other documents including correspondence from the parents and their solicitors.
In his submissions, the Applicant advises that:[13]
… the [Family Court] ordered that both parties be released from the Harman implied undertaking in respect to specific documents produced to the Family Court by reason of either a Rule of Court or by a specific order of the Court, for use in another jurisdiction.
However, he qualifies this by saying:
For certainty, this is not for use in the Tribunal.
[13] Applicant’s Written Submissions dated 12 January 2024. It is not clear when this was meant to have happened; in paragraph 10 he says it was ‘On 8 June 2023’ but in paragraph 14 he says it was ‘On 14 December 2023’:
The Applicant has not supplied a copy of that order. Nor has the Other Party. Accordingly, while I am prepared to accept the Applicant’s concession that the Family Court has released the parties from the implied undertaking with respect to specific documents, I do not know to which documents the ‘release’ applies, or that it does not extend to their use by the Tribunal.
The Applicant also submits that, as at the date of his submissions, the Other Party has not sought or been released from the Harman implied undertaking by the Family Court or the Magistrates Court of [redacted]
I am prepared to accept that OP4 and OP5 were created for production to the Family Court pursuant to judicial direction and for the purposes of those proceedings. I am prepared to accept that the information contained therein was obtained from the Applicant and Other Party under compulsion and that, to the extent that one party obtained information about the other, it was by reason of the other having been compelled to provide it. As such, based on the information before me, I am prepared to accept that the reports OP4 and OP5 ought not be received into evidence by the Tribunal unless the Family Court has released them from the undertaking implicit in their being produced under its direction.
However, my conclusion is predicated on the limited information available to me. As the Applicant appears to have access to the several Family Court orders relevant to the issue, particularly any order releasing documents from the undertaking, it seems to me to be convenient that he supply a copy of the same to the Tribunal so that it may confirm or reconsider my conclusion. Of course, it is also open to the Respondent or Other Party to provide to the Tribunal copies of the orders made by the Family Court if they have access to them.
OP9 is more problematic. On its face the Family Court order of 26 March 2021 only requires Mr FM to supervise visits the children have with the Applicant. It does not require the production of information or a report. According to Mr FM the parties sought a report from him which they proposed to use in their Family Court proceedings, but the Court did not require it or require them to contribute to it. It appears that it was based on Mr FM’s observations and information volunteered to him by the parties’ and their solicitors. Neither party obtained the report, or the information contained within it, because the other was compelled to disclose it.
Mr FM set out the context in which the report was being written and purported to set out some limits to its use, but it does not seem to be that the Applicant was compelled to produce the document or information to the Family Court, and that the Other Party’s access to it was a result of such compulsion. Subject to any further evidence that the Applicant might supply, such as copies of orders made by the Family Court limiting the use of the document, I am prepared to conclude that Mr FM’s report of his observations and his professional opinion is not subject to a Harman implied undertaking and can be received into evidence.
If there is some other rule of law peculiar to the Family Court that restricts the use of OP4, OP5 and OP9 or imposes confidentiality over these documents, it has not been drawn to the Tribunal’s attention.
Should the Tribunal determine that any of the documents can be admitted into evidence, the Applicant seeks certain orders:
(a)with respect to OP4, OP5 and OP9, an order be made for the production of all material relied upon by the relevant report writers in preparing their respective reports;
(b)with respect to OP6, OP7, OP8 and OP11, an order be made for the production of all material relied upon by the Department for Child Protection in preparing each of these documents;
(c)opportunity be given for the Respondent and subsequently the Applicant to file amended Statements of Issues, Fact and Contentions; and
(d)subsequently, opportunity be given for filing of amended Hearing Certificates.
Having regard to my views on OP4 and OP5, it is unnecessary for me to make the orders the Applicant seeks.
As to OP6, OP7, OP8, OP9 and OP11, the Tribunal is prepared to receive these documents into evidence, bearing in mind that the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.[14]. Ultimately, it is for the Tribunal to determine the relevance and weight to be given to documents put in evidence before it. It is up to the party seeking to rely on any disputed content of the documents to decide whether it will call witnesses to speak to that content.
[14] Section 33(1)(c) AAT Act.
Furthermore, it is premature for the Tribunal to consider the making of orders such as those sought by the Applicant to produce material relied upon in the preparation of the documents. There are summons mechanisms available to a party to compel the production of a witness or of documents or information should it choose to use them.
As to the Affidavit, I am unpersuaded that a Harman restriction exists. It is a document created by the Other Party and filed on her behalf. It has been supplied to the Applicant by virtue of her having supplied it to the Respondent. The Other Party has not objected to its being included in the materials before the Tribunal or sought redaction. It is not a document or information that the Applicant has been obliged to disclose to the Other Party or to the Respondent under compulsion. Subject to any legal restraint peculiar to the Magistrates Court of [redacted] proceedings that restricts its use or imposes confidentiality over the Affidavit which has not been drawn to the Tribunal’s attention, I consider that it can be received into evidence.
DECISION
The Tribunal DIRECTS that:
(a)Within 14 days the Applicant file with the Tribunal and serve on the Respondent and Other Party a copy of all Family Court Orders he considers relevant to the question of the use the Tribunal may make of documents OP4, OP5 and OP9;
(b)Subject to the Tribunal receiving further information, documents OP4 and OP5 ought not to be received into evidence by the Tribunal, as potentially being subject to a ‘Harman’ undertaking to the Family Court of Australia; and
(c)Subject to further information and relevance, document OP9, and the Affidavit to Support Application for Intervention Order (Domestic) sworn by the Other Party on 18 May 2020, may be received into evidence by the Tribunal.
I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for decision of Deputy President Mischin
…………[Sgd]…….…………………
Associate
Dated: 21 August 2021
Dates of the hearing:  Determined on the papers
Date of final submissions:  31 January 2024
Representative for the Applicant:            Self-represented
Solicitor for the Respondent:                   HWL Ebsworth
Representative for the Other Party:         Self-represented