CZCB and Child Support Registrar (Child support)

This matter concerned an application for review of an objection decision made by a delegate of the Child Support Registrar. The applicant sought to exclude certain documents, referred to as "disputed documents," from being relied upon as evidence by the other party in the substantive proceedings before the Tribunal. The applicant contended that these documents were prejudicial, self-reported, and untested, and that they should not have been disclosed to the Social Services and Child Support Division (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. The applicant also argued that the SSCSD's review was affected by its consideration of these documents, which the applicant deemed irrelevant.

The legal issues before the Tribunal were whether the disputed documents were subject to the Harman undertaking, whether they were relevant to the proceedings, and consequently, whether they should be excluded as evidence. The Harman undertaking is a common law principle that restricts the use of documents disclosed through a court's compulsory processes to the purpose of that specific proceeding, unless leave of the court is granted or the document is received into evidence. Rule 6.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 similarly governs the use of documents inspected or copied in relation to a proceeding, requiring them to be used solely for the purpose of that proceeding and prohibiting their disclosure without court permission, with certain exceptions.

The Tribunal considered the origin of each disputed document. It appeared that one statement was obtained by the other party outside the court's compulsory process, thus not being subject to the Harman undertaking. A Customised Report was provided to the Court through a subpoena, but the underlying court matter did not proceed to hearing, meaning the document was not entered into evidence. A Child Inclusive Conference Memorandum was likely produced under a court direction, but it was unclear if it was ever accepted into evidence. The Tribunal noted that it was not a competent jurisdiction to deal with contempt or enforce the implied undertaking, but it still had to determine the admissibility and weight of the documents. The Tribunal found the disputed documents to be plainly relevant to the substantive application, as they had been considered by the SSCSD in making findings on special circumstances. The Tribunal also found that the Registrar, in providing the documents to the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, had not breached the Harman undertaking, as this section has effect notwithstanding rules of law relating to privilege or public interest in relation to document production.