The decision of
Anderson v Child Support Registrar [2025] FCA 1022 was heard and
determined in the Federal Court of Australia, it is relevant to the practise of
family law as it relates to both Child Support and the Harman Obligation.
These
proceedings involved an attempt by the applicant mother to obtain documents by
way of discovery, in long running associated proceedings relating to child
support. The specific Order was sought
against the Child Support Registrar.
Pursuant to family law orders made on 8 July 2022, the respondent father
had Sole Parental Responsibility for the parties’ children who were to have
little to no contact with the mother.
The mother had, in fact, no Parental Responsibility for the children
since 6 February 2019. The mother’s
case, in the child support proceedings, was that as Sole Parental
Responsibility for the children rested with the father then she could not be
considered a ‘liable parent’ pursuant to the Child Support (Assessment) Act
1989 (Cth) and therefore could not be required to pay child
support. At the time of these
proceedings the mother had a child support debt of over $22,000.
The mother
wished to use the documents sought in proceedings to be commenced against
witnesses in the prior family law proceedings including the Expert Witness, the
Independent Children’s Lawyer, the husband’s legal representative and the
husband himself.
In determining
the matter, the Court gave significant consideration to Rule 7.23 of the
Federal Court Rules and determined that she was not entitled to
discovery as sought.
That leads
us to a discussion of a reversed situation, that is, in what circumstances can
documents filed in family law proceedings be provided to the Child Support
Registrar for a different purpose – assessing child support?
Generally
speaking, the Harman Obligation, as described in Hearne v Street (2008) 235 CLR 125, dictates that such documents are
confidential and cannot be used for any other purpose without leave of the
Court.
However, in the
matter of Pedrana & Pedrana (No 2) [2012] FamCA 348, in an
application in a case brought by the Child Support Registrar, supported by the
mother but opposed by the father, His Honour, Watts J, was asked to make a
declaration in the following terms:
“..that the
Child Support Registrar and officers and employees of the Department of Human
Services (“the Department”) are not prevented, by reason of any undertaking to
the Family Court, from using the following information in the exercise of their
statutory functions and powers, namely, the information in the documents sent
by
[Ms Pedrana] to the Department as part of the application signed by her on
23 May 2011.”
The mother was
seeking a change of assessment in respect of the child support to be paid by
the father in circumstances where the documents provided by him in the Family
Court proceedings revealed a much greater income than that disclosed to the
Child Support Agency.
His Honour opined that the sole issue for the court’s determination was whether
the Harman obligation must “yield” in the circumstances of this case because
it is inconsistent with the provisions of the Child Support (Assessment)
Act 1989 (Cth) (“CSAA”), in particular, s 98H(1) CSAA.
On 15 May 2012,
in making the Order as sought by the Child Support Registrar, By his decision
delivered on 15 May 2012, His Honour found that, at paragraph 157, that:
Adopting a purposive approach to both s98H(1) and s159(1) CSAA, I find that the Harman obligation must yield to each of those subsections respectively.
That conclusion is consistent with the general scheme of the CSAA, including its objects and
avoids the adverse practical implications if the opposite conclusion was
reached. Accordingly, a declaration will be made as sought by the Registrar.
Thereafter the child support assessment increased from $1,898 annually to $12,634 – an increase of around 566%.