CZCB and Child Support Registrar (Child support)

[2024] AATA 3280

CZCB and Child Support Registrar (Child support) [2024] AATA 3280 (10 September 2024)

Division:GENERAL DIVISION

File Number(s):      2024/0936

Re:CZCB

APPLICANT

AndChild Support Registrar

RESPONDENT

AndLRHJ

OTHER PARTY

DECISION

Tribunal:Senior Member A Poljak

Date:10 September 2024

Place:Sydney

The disputed documents are not to be excluded from evidence in these proceedings.

......................[SGD]..................................................

Senior Member A Poljak

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)–16(2AC) of the Child Support (Registration and Collection) Act 1988.

CATCHWORDS

CHILD SUPPORT – Interlocutory issue – Evidentiary dispute – Harman undertaking – Whether disputed documents are to be excluded as evidence in proceedings – Whether subject to Harman undertaking – Whether documents are irrelevant – Disputed documents not excluded

LEGISLATION

Administrative Appeals Tribunal Act 1975

Child Support (Assessment) Act 1989

SECONDARY MATERIALS

Child Support Guide

Federal Circuit and Family Court of Australia (Family Law) Rules 2021

REASONS FOR DECISION

Senior Member A Poljak

10 September 2024

1. The applicant and other party are the parents of two children, Child 1 and Child 2. On 21 July 2009, a child support assessment was registered in respect of the children.

2. On 14 June 2021, a delegate of the Child Support Registrar (Registrar) determined that Child 1 was in the other party’s 100% care from 11 May 2021. On 12 July 2021, a delegate of the Registrar determined that Child 2 was also in the other party’s 100% care from 11 May 2021.

3. On 4 March 2023, the applicant lodged an objection to those decisions.

4. On 16 June 2023, a delegate of the Registrar disallowed the applicant’s objection (objection decision).  

5. On 7 July 2023, the applicant applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (SSCSD) for review of the objection decision.

6. On 2 November 2023, the other party provided documents (disputed documents) to the SSCSD in support of his case. Namely:

   (a)documents B5 and B6, being the statement of Ms V [name redacted] dated 1 March 2022;

   (b)documents B8 to B14, being a Child Inclusive Conference Memorandum to Court dated 15 July 2021; and

   (c)documents B15 to B18, being a Customised Report relating to the applicant from the NSW Police.

7. On 3 January 2024, the SSCSD affirmed the objection decision. In its reasons, the SSCSD had regard to the disputed documents and made findings relevant to the question of whether special circumstances existed for the purposes of subsection 51(5) of the Child Support (Assessment) Act 1989 (Assessment Act).

8. On 16 February 2024, the applicant applied to the Tribunal for review of the SSCSD decision.

9. The applicant objects to the disputed documents being relied upon as evidence by the other party in the substantive proceedings before this Tribunal and contends that, in summary:

   (d)the evidence is prejudicial, self-reported and untested information which does not meet the ‘standard of proof’ outlined in Topic 4.82 of the Child Support Guide (Guide); and

   (e)the disputed documents should not have been disclosed to the SSCSD as they were subject to the ‘Harman undertaking’ and rule 6.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Rules); and

   (f)review by the SSCSD was affected by it having regard to the disputed documents as they were irrelevant; and

   (g)the Member engaging in questioning of the applicant in relation to those documents such that “all [her] testimony regarding this interrogation” should not be relied upon in the current proceedings.

10. The respondent aptly sets out the Harman undertaking principle in written submissions as follows:

    The Harman undertaking (also known as the “implied undertaking”) is a common law principle which applies to information and documents that have been disclosed to the parties to Court proceedings through the Court’s compulsory processes. These documents can include but are not limited to: documents produced on subpoena; witness statements served pursuant to a judicial direction; documents inspected after discovery; and affidavits. The party who has obtained the disclosure of a document subject to the undertaking cannot, without leave of the court, use it “for any purpose other than that for which it was given unless it is received into evidence". It is generally accepted that the Harman undertaking will apply to third parties who have been provided with the documents and/or information.

11. Relevantly, Rule 6.04 of the Rules provides as follows:

    6.04 Use of documents

    (1) A person who inspects or copies a document, in relation to a proceeding, under these Rules or an order:

    (a) must use the document for the purpose of the proceeding only; and

    (b) must not otherwise disclose the contents of the document, or give a copy of it, to any other person without the court’s permission.

    (2) However:

    (a) a solicitor may disclose the contents of the document or give a copy of the document to the solicitor’s client or counsel; and

    (b) a client may disclose the contents of the document or give a copy of the document to the client’s solicitor or counsel; and

    (c) this rule does not affect the right of a party to use a document or to disclose its contents if that party has a common interest in the document with the party who has possession or control of the document.

    Consideration

12. In relation to the statement of Ms V, the other party said in his written submissions dated 15 July 2024, that the statement was provided to him by Ms V “to be used against [the applicant] whenever she accused me of domestic violence in our relationship”. If this is correct then it appears the other party first obtained the statement outside the Court’s compulsive process, such that the document was not subject to the Harman undertaking.

13. In relation to the Customised Report, it appears based on the letter provided by the applicant from the NSW Police Force dated 15 February 2024, that the document was provided to the Court through a compulsory process, namely a subpoena issued on behalf of the other party. The Singleton Local Court has confirmed that “the matter did not proceed to hearing as it was withdrawn/dismissed and therefore there were no documents entered/read into evidence”.

14. In relation to the Child Inclusive Conference Memorandum (Memorandum), given the nature of the document it is likely that it was produced in accordance with a direction made by the Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia). However, it is unclear whether the Memorandum was ever accepted into evidence.

15. The Tribunal is not a competent jurisdiction to deal with a person for contempt or to enforce the implied undertaking. Rather, a finding that the other party has acted in breach of the undertaking, and that the other party has therefore acted in contempt, are matters for the relevant Courts in question. However, it will still need to be determined whether the disputed documents should be accepted into evidence and what regard should be given to them when the Tribunal performs its statutory task of review.

16. The disputed documents are plainly relevant to the substantive application. As already noted, the SSCSD had regard to and relied on the disputed documents and made findings relevant to the question of whether special circumstances existed for the purposes of subsection 51(5) of the Assessment Act.

17. While the other party provided the disputed documents to the SSCSD, in the current proceedings, the documents were provided to the Tribunal by the Registrar pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act). The Registrar was required to provide the Tribunal with all documents in his possession that were relevant to the review, and this included the disputed documents. I do not consider that in complying with his statutory obligation, the Registrar has acted in any breach of the Harman undertaking. Noting here that section 37(3) of the AAT Act, provides that the section ‘has effect notwithstanding any rule of law relating to privilege or the public interest in relation to the production of documents’.

18. The applicant has raised concerns about prejudice and about the use of the disputed documents. What weight should be applied to them is a matter for the member constituted to the substantive hearing of this matter including procedural fairness issues, the relevance of the disputed documents, and the significance of how they were used and relied on during the SSCSD proceedings. These are matters that the applicant can further ventilate in the final hearing of the current review. The Tribunal does not consider that there is undue prejudice in the documents being seen by the Member hearing the matter at final hearing.

19. At this stage of the proceedings, I am not minded to exclude the disputed documents as evidence in this matter.

20.     I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

.........................[SGD]...............................................

Associate

Dated: 10 September 2024

Date of hearing:

Heard on the papers

Applicant:

Self-represented

Other Party:

Solicitor for the Respondent:

Self-represented

Mr M Sheedy, Sparke Helmore Lawyers