Federal Court of Australia

Anderson v Child Support Registrar [2025] FCA 1022

ORDERS

THE COURT ORDERS THAT:

1.    The application filed by the applicant on 1 April 2025 be dismissed.

2.    The applicant pay the costs of the respondent of and incidental to the proceedings, such costs to be taxed if not otherwise agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court is an urgent application before start of a proceeding pursuant to rule 7.01(2) of the Federal Court Rules 2011 (Cth) filed by the applicant, Ms Kimberly Anderson (Ms Anderson) on 1 April 2025. By paragraph 4 of her application, Ms Anderson also seeks preliminary discovery pursuant to r 7.23 of the Federal Court Rules, in anticipation of filing further proceedings.

BACKGROUND

2    Some background relevant to the present proceedings can be found in the affidavit of Ms Jenny Davenport, a Senior Executive Lawyer acting on behalf of the Child Support Registrar (Registrar), filed on 26 May 2025. It relevantly provided:

    On 6 April 2018 a child support case commenced between Ms Anderson and her former husband. According to a decision of the Registrar dated 7 April 2025, Ms Anderson and her former husband were assessed to pay a rate of child support at different times due to changes in their incomes and the care level of the children. Ms Anderson was required to make child support payments to her former husband for the support of the children, and as at 19 April 2025 Ms Anderson had outstanding child support payments of $22,427.47.

    On 5 September 2024 a notice pursuant to s 72A of the Child Support (Registration and Collection) Act 1988 (Cth) (CSRC Act) was issued to MLC Limited garnishing 0.32 cents per dollar to cover Ms Anderson’s outstanding child support debt (garnish order).

    On 6 February 2025 Ms Anderson applied to change her assessment to reduce her child support payments to $0 from 12 August 2019, claiming hardship. Her application was refused on 7 April 2025 on the basis that no reason had been established by Ms Anderson to substantiate a change to the assessment previously made.

    On or about 3 April 2025 Ms Anderson’s former husband applied to end Ms Anderson’s child support assessment, such that Ms Anderson was no longer required to pay child support for the children. As a result, Ms Anderson’s liability to pay ongoing child support ceased on 3 April 2025.

3    It is also relevant to note that, at material times, Ms Anderson went by the name “Kimberly Nichles”.

4    In the application presently before the Court Ms Anderson seeks the following orders:

1.    An injunction suspending the further payment of any Child Support to the Department of Social Services by the Applicant.

2.     An injunction on any further garnishing of Child Support from the salary of the Applicant to the Department of Social Services.

3.     The total funds paid to Child Support by the Applicant from 2018 until the present date be placed into Trust with the Court.

4.     An Order for Unredacted Discovery is issued requiring Department of Social Services to provide a copy of the entire Nichles file to the Court, including all documentation, correspondence, applications, metadata, and audio recordings; with an electronic copy provided free of charge to the Applicant.

EVIDENCE

5    Ms Anderson has filed an affidavit dated 31 March 2025 in support of her application. Relevantly, Ms Anderson deposed as follows:

Why the Urgent Orders are Sought

4.    This matter involves Child Support monies received by the Father as paid by the Applicant ("Mother'') to the Department of Social Services branch, Services Australia ("Child Support Agency") on behalf of [redacted] ("the Nichles Children").

    …

10.     On 8 July 2022, Justice Baumann made final orders for the Children to be placed in the Sole Parental Responsibility of the Father with little to no contact for the Mother (Applicant), despite noting at (126)-(128) the Father was "dominating and disempowering" to the Mother and the children should not be exposed to such. He knew the Father was violent and abusive to the Mother and Children but made orders contrary to the intention of the Family Law Act in support of the Abusive Controlling Father.

11.     The Mother has had no Parental Responsibility of the Children from 6 February 2019.

The Law

12.     According to the legislation, (1) the Applicant ("Mother") is not a "parent", and (2) the Court Orders removed "parental responsibility" from the Applicant granting "sole parental responsibility" to the Father; therefore the only "parent" responsible for "all the duties, powers, responsibilities and authority" in relation to the Children is the Father, including sole financial responsibility.

13.    The Applicant is not a liable parent for the purposes of the Child Support (Assessment) Act 1989 (Cth), and the Father is not a "custodian entitled to child support" for the purposes of the Child Support (Assessment) Act 1989 (Cth).

14.    By seeking Orders for Sole Parental Responsibility in the Family Court and succeeding, he forfeited any entitlement to Child Support, as he effectively de-parentified the Mother.

…

Conclusion

28.     The Federal Circuit and Family Court of Australia Parenting Orders in relation to the Nichles Children vested sole parental responsibility with the Father, and no parental responsibility with the Mother. The Mother is therefore legally not their parent.

29.     Only a parent is required to pay Child Support pursuant to s3 Child Support (Assessment) Act 1989 (Cth).

Harm Caused to the Applicant

30.    The Applicant has been subjected to a period of almost seven years paying Child Support to the Father, where at Law, she has never been required to do so.

31.     Family Court Orders removed that obligation by them removing parental responsibility and therefore the responsibility was "displaced by the Court. This means she is not a "parent" and is not liable to pay Child Support under the provisions of the Act.

…

Harm Caused to the Applicant

33.    The Child Support agency has forced me to pay much (up to half) of my monthly disability insurance payment to the Abusive Father who caused my disability in the first place. He caused this disability by committing crimes such as strangulation, assault, fraud, embezzlement, stalking, hacking, intimidation, defamation, harassment, coercive control; and assault and child sexual abuse against her Children.

34.    All of the evidence is available to the Court on each of these issues.

35.    He caused me to be unable to work in my profession and earn my previously very high Management Consulting (boutique firm) income of up to $365,000 per annum (eg. in 2006 at the age of 28) which 19 years later, would be at least double or triple that number accounting for natural business growth.

36.    He continues to abuse my Children causing me further trauma, stress, anxiety, PTSD and tachycardia.

37.    He continues to maliciously prosecute me, attempting to furnish me with a criminal record by making frivolous, petty and false complaints to Police; even fabricating evidence to force charges against me, and has caused 8 failed prosecutions in only 7 years; leaving me constantly facing Courts to prove my innocence without any reprieve from those proceedings. This causes me even further trauma, stress, anxiety, PTSD and tachycardia.

38.    The losses accrued by being forced to pay Child Support are more than just the amounts paid to the Agency. There are damages to consider for the pain and suffering they prolonged by failing to check the actual income of the Father in the first instance, and secondly, by, in 2024 when raised with them in an Application for Change of Assessment to suggest a rate of $0, refusing to accept the Law being that a “parent” is only a person who has parental responsibility of a Child and garnishing me anyway.

39.    The Special Damages would be calculable by the granting of Interim Order 4, for Services Australia to provide a copy of all detailed and unredacted records electronically to the Court, noting a copy is required for the Applicant to peruse at home to do the calculations. The calculations can then be performed for loss of income, interest and indexation payable, as well as consideration for loss of opportunity (e.g. to purchase property at an affordable price).

40.    General/Compensatory Damages, Pecuniary Loss, Income Loss, Aggravated Damages and Exemplary Damages will all be calculable at that point.

Urgency of Reprieve from Harm: Financial and Personal Consequences of Child Support's Failure to Perform Statutory Duty

41.    On or about 7 July 2024, I became homeless as a result of a family dispute in relation to my ex-Husband's constant legal abuse against me involving Police and the fact that I was constantly struggling to pay off all the debts and unable to maintain a rental house during the rental crisis due to the requirement to pay new Bond money every 6-12 months and excessive relocation costs. My family could not handle my ex-husband's abuse against our family any longer.

42.    After spending 2 weeks with my friend and her family, I had no choice but to live in my vehicle. I was also forced to change mobile numbers due to my phone being linked to my mother. I had no money and was forced to eat cheap fast food and from the university vending machines. I had no ready access to toilets and showers.

43.    On 24 September 2024, without warning, the Child Support Agency began garnishing my monthly Disability Insurance Payment by approximately $3,800 per month, from a usual payment of approximately $8,400. The entire income was committed to payments and fixed costs and trying to obtain a lease on a new apartment to live in.

44.    As a result of this garnishing, the $3,000 I was relying on to pay Bond on a new rental house was taken and I had to continue living in my car and couch-surfing until 3 February 2025.

45.    At about this time, I contacted Child Support to stop the garnishing; and, as I had done every year, I reported again that the Father was under-reporting his income by up to $100,000 per annum, and due to this fraud, I did not likely have any valid debt, therefore the garnishing should be suspended pending investigation into his Fraud.

46.    They refused to suspend it and did not ever advise me there was a "Financial Hardship Form" I could fill in and make Application that way to suspend payments.

47.    l lodged a Change of Assessment form, but Child Support refused to file it because I reported domestic violence on the form. At one time, I lodged a Form stating the Law in relation to the subject of this Application - that I was not a "parent" by Law, and they disagreed and garnished me anyway.

48.    It is not anywhere in the legislation that they may refuse to perform an Assessment due to the truth about domestic violence being reported on the form. They failed to perform a Statutory Duty with no legally valid reason.

49.    I later found out by another of their employees (which is recorded) that they redact the forms, and they could have actually processed it by redacting the information they did not want him to see.

50.    Every month, the garnishing caused me further and further debt.

51.    In order to make up the shortfall of $3,800 per month, I had to commence using a Credit Card I had not used for years, and it is now past its maximum limit.

52.    I also had to take out a $6,000 Loan to pay for bond to move into a share house and pay other debts in November/December. I only stayed a few weeks as a male abuser lived there and my bond was not returned, causing me to return to living in my car.

53.    I then went to Queensland and couch-surfed until 3 February 2025, then moved into a Boarding House in Newcastle, ready to recommence University (Law School) on 24 February 2025.

54.    On 11 February 2025, I returned to Queensland for a Court hearing the following week.

…

Events of 20 February 2025

…

68.    The Father, by his malicious Police complaints, has caused extraordinary pain and suffering, and is receiving child support on a fraudulent basis, as (a) the law did not allow him as an abuser to have custody of the children which meant he would not have received any child support and would have to pay Child Support to me to raise the children in a safe environment, and (b) he has reduced his income (using false business tax deductions) to under-report his true earnings to the ATO so he maximises his own profit and diminishes my income so I am forced to live in poverty. I only have debt and extraordinary Court and travel expense as a result of his extensive Systems Abuse.

Response by Child Support to the Abuse, Domestic Violence and Financial Hardship

69.    I reported everything to Child Support, in particular my Case Manager Pisey, and she refused on every occasion to process any of my Applications with any urgency.

70.     I had filed a Hardship Application on 6 February 2025 which in the Policy was to have a 2-3 day turnaround, and Pisey did not process it It was not entered into the system.

71.     I then resent that application in early March, and again, it was not entered into the system.

72.     I then called daily to force action on the Application.

73.     They argued and kept moving the deadline by 2 to 3 days at a time.

74.     I spoke to Andre in Complaints who assured me Pisey had been removed from my case and I had a new Senior Case Manager. Then after that call, Pisey was still on the case.

75.     We argued a lot, as I desperately needed to pay my outstanding bills. They refused to stop the garnishing every time I called.

76.     I was forced to suspend my entire pay so the garnishing could not be exercised.

77.     That means I now cannot pay any bills whatsoever, unless the Court makes injunction to stop the Garnishing of my account

78.     I can't have the account garnished as I will not be able to afford to pay Creditors and it will put me further into debt and cause a credit default.

79.    Pisey maliciously refused to stop the garnishing which I desperately needed so I could catch up on my Credit payments.

80.    She knew I had to register my vehicle by 8 April 2025 and there was a $2500 expense including transfer of the vehicle to my name, or the car would fall into an unregistered state and I would not be able to get back from Queensland for University in Newcastle, nor be able to keep up with Court commitments from Queensland to Sydney and back each month.

81.    She knew my ex-husband was underreporting income for 7 years, and was on $260,000 per annum (likely increased to at least $320,000 by now after 7 years), has only reported between $120,000 and $190,000 per year over that whole time, and is living a lavish lifestyle with yearly cruises, holidays, and recently having booked a European trip for Italy, Greece and Morocco.

82.     With his high income, the Child Support Agency or Court putting a hold on garnishing would not impact him in the slightest.

83.     I checked with Pisey that she had discretion to suspend garnishing, and she confirmed she did have discretion, but she maliciously refused to exercise it.

84.     I outlined all my expenses, gave the Child Support Agency bank accounts to prove everything, and also outlined the Court expenses with extraordinary items such as printing costs required by the Judges of the Supreme Court for the Appeal Folders.

85.     Despite Court summonses requiring me to be in Court and despite my Appeals being necessary for the Safety of the children in a sexual abuse situation - Pisey said words to the effect of "Court Costs are not required expenses and have been excluded".

86.     Pisey also did not consider the Credit Card and Loan expenses that she caused by making a s72A Garnish Order in the first place. She did not consider that her actions caused me to have to live in a car and couch-surf for 6 months, not being able to afford any bond money for a house or apartment, and having to eat cheap unhealthy foods.

87.     The legislation is very clear that Child Support may only be taken after the necessary living expenses and costs of the person required to pay Child Support. The calculations have been incorrect the entire time, and the Case Manager refuses to take responsibility for that.

88.     One of the issues is with the disparity in income of the Father compared to my income.

89.     The Child Support Agency have taken an inequitable and disproportionate amount of my income to furnish a wealthy Father who is underreporting his income in order to abuse me; ie. take as much money as he can from me in acts of fraud and further financial, psychological, emotional and economic abuse.

90.    I recorded all of my interactions with Child Support for my legal protection and for use in a Court of Law. These are available to the Court and can be transcribed if necessary.

(emphasis in original)

6    In regard to the evidence submitted by the Registrar, Ms Davenport swore an affidavit on 12 May 2025 outlining facts relevant to the assessment of child support to be paid by Ms Anderson.

SUBMISSIONS OF THE PARTIES

Ms Anderson

7    Ms Anderson has filed several sets of written submissions in the present proceeding. Her submissions filed on 1 April 2025 and 9 May 2025 significantly overlap, and substantially replicate Ms Anderson’s evidence in her affidavit. In her submissions filed on 4 June 2025 Ms Anderson submitted, in summary:

    Ms Anderson sought an injunction in respect of obtaining discovery that likely demonstrates the Child Support Agency to have been aiding and abetting Ms Anderson’s former husband in the child support matter, to commit fraud against Ms Anderson and against the Commonwealth.

    The Registrar has refused to investigate the fraud of Ms Anderson’s former husband.

    Evidence of fraud was within material sought by subpoena. It is Ms Anderson’s right to access any materials held by Commonwealth authorities in relation to herself and her children, including information pertaining to her former husband where information he has provided impacted the decision making by the Child Support Agency.

    Ms Anderson had applied on 24 September 2024 and the application was denied on frivolous grounds. The issue was whether fraud was committed by Ms Anderson’s former husband, aided by the Child Support Agency. Evidence of this is held in the subpoena materials sought in orders by the Court to examine whether there is an arguable case.

    Ms Anderson, by her submissions, establishes a reasonable belief that she may have the right to obtain relief against the respondent, and by the respondent’s submissions, the admissions of making reasonable inquiries with the Registrar prior to commencing this proceeding has occurred. The details of those communications are held in the discovery materials as requested by Ms Anderson.

    On 3 April 2025, the Child Support Agency determined that, from 3 April 2025, Ms Anderson would have no liability to pay ongoing child support, such that her liability to pay ongoing child support ceased from this date. This was the choice of Ms Anderson’s former husband so as to avoid being caught in deliberate acts of taxation and child support fraud.

    Ms Anderson has made no application for review of the 7 April decision because it is not the decision that is the issue, but the fraud and negligence of the Department that has occurred over a 7.5-year period in respect of investigating the true income of Ms Anderson’s former husband.

    Ms Anderson has satisfied the legal requirements for a temporary injunction and full discovery of her child support file prior to filing a case. That case has been sufficiently admitted by the respondent in its admission that Ms Anderson’s former husband has waived child support for the future. Ms Anderson has suffered severe impecuniosity since September 2024 as a result of the avoidance of the Child Support Agency to investigate the true income of Ms Anderson’s former husband and its refusal to remove the garnish order until such action has been taken. The respondent is part of a Federal Agency and suffers little to no detriment in the overall scheme of things considering their vast budget.

    The relief sought by Ms Anderson should be approved as a matter of discretion. It would be an act of injustice for the Court to continue to allow the Child Support Agency to garnish Ms Anderson’s income in circumstances where her former husband, with the Child Support Agency’s assistance, may have committed major long term financial fraud.

    Ms Anderson’s aim is to obtain final relief extinguishing her child support debt and refunding all amounts paid “plus compound interest and indexation at rates matching an increase in property prices.” This is likely achievable by the proof of the existence of fraud in the matter and therefore is a prima facie case.

    The balance of convenience favours the approval of the injunctive relief sought by Ms Anderson because:

•    Her case weighs in favour of granting injunctive relief.

•    The grant of an injunction would restrain the Child Support Agency in continual fraudulent enforcement of payments, which is required if the debts it calculated are not the actual amount owing by Ms Anderson.

•    The Child Support Agency has determined that Ms Anderson has no liability to pay ongoing child support after 3 April 2025. Her debt to the Commonwealth relates solely to existing liabilities and any penalties. The Child Support Agency admits that they have charged penalties on the outstanding debts where they have also been clearly advised there may be a case of fraud by Ms Anderson’s former husband which requires investigation, and they have failed to investigate. Hence they admit they were aiding and abetting Ms Anderson’s former husband in committing further fraud. Detailed evidence is contained within the discovery materials sought by Ms Anderson.

•    Investigating child support fraud and the department’s involvement in that fraud, and to correct the payments made over 7.5 years, is the primary purpose of seeking all available discovery materials on the child support file. As such, in the absence of discovery material, the Child Support Agency should be required to cease the garnish order and remove any penalties charged to Ms Anderson from that debt.

    Rule 7.23 of the Federal Court Rules is intended to be a beneficial aid to a prospective applicant who is having real difficulty, and reasonably so, in deciding whether to litigate because of a lack of essential information. Ms Anderson seeks preliminary discovery:

•    To allow her to work out exactly how the Child Support Agency aided and abetted her former husband in committing Commonwealth fraud.

•    To support a claim for special damages.

•    In circumstances where Ms Anderson’s former husband waived his right to future child support, which indicates that he is avoiding discovery of his true income and being investigated.

•    In circumstances where Ms Anderson had made reasonable inquiries with the Child Support Agency.

8    At the hearing Ms Anderson’s oral submissions followed her written submissions, although I note that Ms Anderson also submitted that she had not brought an application under the Freedom of Information Act 1982 (Cth) because:

…what happens with FOIs is that they have the ability to redact the information and I require all unredacted information. I know this from experience. So an FOI takes a very long, long time and, because we’re before the court today and the court can make that subpoena available in an unredacted manner, that way I can get all the information that I need to be able to bring the full case and the proper case before the court with proper pleadings. I won’t be able to plead if I don’t have the information. The injunction is necessary because… page 75 of the court book [says]:

the grant of an injunction would restrain the respondent in continual fraudulent enforcement of payments, which is required if the debts calculated by the respondent are not the actual amount owing by the applicant.

(transcript 17 June 2025 p 3 lines 30-46)

9    Ms Anderson also referred to the decision of the High Court of Australia in Masson v Parsons (2019) 266 CLR 554.

The Registrar

10    In summary the Registrar submitted:

    The application appears to arise principally from a complaint by Ms Anderson that she should not have been assessed by the Child Support Agency as liable to pay child support under Part 4 of the Child Support (Assessment) Act 1989 (Cth) (CSA Act) on the basis that she is not a “parent” within the meaning of s 29(2) of the CSA Act by reason of Family Court orders giving “sole parental responsibility” of her three children to Ms Anderson’s former husband.

    Ms Anderson has not established a prima facie case to support the grant of urgent injunctive relief, and the balance of convenience favoured refusal. There are four reasons for this, namely:

•    It is not disputed that Ms Anderson is the biological parent of her children.

•    The meaning of “parent” was considered by the High Court in Masson, where it was found that the term ought to be given its natural and ordinary meaning.

•    The concept of “parental responsibility” is not a term used in the CSA Act and there is no basis that the word “parent”, as used in the CSA Act, was intended by Parliament to be defined by reference to “parental responsibility”.

•    Ms Anderson’s asserted relevance of certain State laws which define “parent” by reference to parental responsibility is misconceived.

    The balance of convenience favours refusal of the injunctive relief sought. This is because the weakness of Ms Anderson’s case weighs heavily against granting injunctive relief. An injunction would restrain the enforcement of the child recovery debt owing to the Commonwealth by the Child Support Agency. Further, Ms Anderson’s debt to the Commonwealth would not continue to increase as she no longer has liability to pay ongoing child support. Finally, Ms Anderson has open to her a number of more appropriate pathways of review of the 7 April decision, which she has not pursued.

    The requisite elements of r 7.23 of the Federal Court Rules are not satisfied such that preliminary discovery should be granted. Ms Anderson has not provided any material which establishes a reasonable belief that she may have the right to obtain relief against the Child Support Registrar. Further, no evidence has been provided by Ms Anderson showing that she has made reasonable inquiries prior to commencing the proceeding.

    The relief Ms Anderson sought ought be refused on discretionary grounds.

CONSIDERATION

11    The present application requires the Court to consider whether an order for discovery should be made against the Registrar prior to Ms Anderson commencing a proceeding, and whether the Court should order an injunction in the terms Ms Anderson has sought. It is convenient to consider these issues in turn.

Discovery

12    Rule 7.23 of the Federal Court Rules provides:

7.23 Discovery from prospective respondent

(1) A prospective applicant may apply to the Court for an order under subrule (2) if the prospective applicant:

(a) reasonably believes that the prospective applicant may have the right to obtain relief in the Court from a prospective respondent whose description has been ascertained; and

(b) after making reasonable inquiries, does not have sufficient information to decide whether to start a proceeding in the Court to obtain that relief; and

(c) reasonably believes that:

(i) the prospective respondent has or is likely to have or has had or is likely to have had in the prospective respondent’s control documents directly relevant to the question whether the prospective applicant has a right to obtain the relief; and

(ii) inspection of the documents by the prospective applicant would assist in making the decision.

(2) If the Court is satisfied about matters mentioned in subrule (1), the Court may order the prospective respondent to give discovery to the prospective applicant of the documents of the kind mentioned in subparagraph (1)(c)(i).

13    The leading case in this Court in which r 7.23 was examined was that of the Full Court in Pfizer Ireland Pharmaceuticals v Samsung Bioepis AU Pty Ltd [2017] FCAFC 193. In that case, Allsop CJ said:

8.    … The foundation of the application in r 7.23(1)(a) is that an applicant (a person or a corporation) reasonably believes that he, she or it may have a right to relief. The belief therefore must be reasonable (expressed in the active voice that someone reasonably believes) and it is about something that may be the case, not is the case…

(emphasis in original)

14    At [17], his Honour reiterated this point, noting that:

The applicants must reasonably believe that they may have, not that they have, the right to obtain relief…

15    In the same case Perram J observed:

101.    FCR 7.23(1)(b) confirms that the process is not available where sufficient information is available to allow the commencement of a proceeding. The central part of the rule, however, is contained in FCR 7.23(1)(a). Leaving aside that aspect of the rule concerned with whether the prospective respondent’s identity has been ascertained, the rule has two features:

•    there must be a reasonable belief as to a particular state of affairs; and

•    that state of affairs consists of the possibility (required by the word ‘may’) that the prospective applicant has a right to obtain relief from the prospective respondent.

16    His Honour continued:

108.    As I have noted already, it is not the requirement of this rule that there be a reasonable belief that there is a right to obtain relief. This is an important qualification and it colours necessarily the analysis involved in assessing the reasonableness of the belief. FCR 7.23(1) is not about giving preliminary discovery to those who believe they do have a case. Its wording unequivocally shows that it is about those who do not know that they have a case but believe that they may. In terms, it authorises what traditionally have been referred to as fishing expeditions; that is to say, evidentiary adventures in which the goal is not to find proof of a case already known to exist, but instead to ascertain whether a case exists at all.

17    After reviewing the authorities, Perram J said:

120.    The following propositions about preliminary discovery applications should be accepted:

(i) the prospective applicant must prove that it has a belief that it may (not does) have a right to relief;

(ii) it must demonstrate that the belief is reasonable, either by reference to material known to the person holding the belief or by other material subsequently placed before the Court;

(iii) the person deposing to the belief need not give evidence of the belief a second time to the extent that additional material is placed before the Court on the issue of the reasonableness of the belief. That belief may be inferred;

(iv) the question of whether the belief is reasonable requires one to ask whether a person apprised of all of the material before the person holding the belief (or subsequently the Court) could reasonably believe that they may have a right to obtain relief; and

(v) it is useful to ask whether the material inclines the mind to that proposition but very important to keep at the forefront of the inclining mind the subjunctive nature of the proposition. One may believe that a person may have a case on certain material without one’s mind being in any way inclined to the notion that they do have such a case.

121.    In practice, to defeat a claim for preliminary discovery it will be necessary either to show that the subjectively held belief does not exist or, if it does, that there is no reasonable basis for thinking that there may be (not is) such a case. Showing that some aspect of the material on which the belief is based is contestable, or even arguably wrong, will rarely come close to making good such a contention. Many views may be held with which one disagrees, perhaps even strongly, but this does not make such a view one which is necessarily unreasonably held. Nor will it be an answer to an application for preliminary discovery to say that the belief relied upon may involve a degree of speculation. Where the language of FCR 7.23 relates to a belief that a claim may exist, a degree of speculation is unavoidable. The question is not whether the belief involves some degree of speculation (how could it not?); it is whether the belief resulting from that speculation is a reasonable one. Debate on an application will rarely be advanced, therefore, by observing that speculation is involved.

18    More recently in Trentham Enterprises Pty Ltd v Rahui [2024] FCA 1065 Colvin J explained:

12.    Relevantly for present purposes, I note the following (adapting the language used in the authorities):

(1) the purpose of the Rule is to enable a party to have sufficient information to decide whether to commence proceedings and not to provide further comfort in taking the decision which the party already has sufficient information to take;

(2) the states of reasonable belief required by the Rule must be subjectively held and also have an objective basis;

(3) given the nature of the orders and the burden they are likely to impose, a party seeking an order for pre-action discovery must be frank as to the information available to the party and the particular deficiency that is said to give rise to a difficulty in deciding whether to start a proceeding;

(4) it is no answer to an application to say that the party seeking the order has sufficient information to advance 'a bare pleadable case';

(5) further, even where there is a reasonable cause to believe that a person may have a right to relief, nevertheless that person may need information to know whether the cost and risk of litigation is worthwhile;

(6) it is no answer to an application to assert that it is 'fishing' because the Rule provides for a form of fishing if the matters specified in the Rule are established;

(7) the Court retains a discretion whether to make the order sought if the matters specified are established and the exercise of the discretion is the proper brake on any excesses as to the use of the procedure (rather than restrictive or unnecessary glosses on the extent of the Court's power under the Rule to make orders for pre-action discovery); and

(8) if the required matters as specified in the Rule are established, normally there will be little scope for refusing the application on the basis of discretion.

(emphasis in original)

19    Ms Anderson has sought an order for unredacted discovery requiring the Department of Social Services to provide a copy of the entire Nichles file to the Court, including all documentation, correspondence, applications, metadata, and audio recordings; with an electronic copy provided free of charge to the applicant. The basis for her application in respect of this order, as set out in her affidavits, is in summary:

    On 6 March 2019, fraud was committed on the Federal Circuit Court (as it then was) constituted by Judge Spelleken, by an expert witness, the Independent Children’s Lawyer, the lawyer for Ms Anderson’s former husband, and Ms Anderson’s former husband.

    Orders of Baumann J on 8 July 2022 placing the Nichles children in the custody of Ms Anderson’s former husband were contrary to the intention of the Family Law Act 1975 (Cth).

    Parenting orders vesting sole parental responsibility of Ms Anderson’s children with Ms Anderson’s former husband meant that, legally, Ms Anderson is not the “parent” of the children, and only a parent is required to pay child support pursuant to s 3 of the CSA Act.

    Ms Anderson’s former husband has caused her disability by committing crimes such as strangulation, assault, fraud, embezzlement, stalking, hacking, intimidation, defamation, harassment, coercive control and assault and child sexual abuse against Ms Anderson’s children.

    The Registrar is liable for special damages to Ms Anderson because:

•    The Agency caused her pain and suffering by failing to check the actual income of Ms Anderson’s former husband, including Ms Anderson’s reports that her former husband was fraudulent and understating his income.

•    The Agency continued to garnish Ms Anderson’s income after refusing to accept Ms Anderson’s submission that being a “parent” is only a person who has parental responsibility of a child, and knowing that Ms Anderson was suffering hardship.

20    I am not satisfied that orders pursuant to r 7.23 should be made in the terms sought by Ms Anderson.

21    First, it is plain from both Ms Anderson’s submissions and her evidence that she took issue with the assessment of the Child Support Agency that she be liable to pay child support under Part 4 of the CSA Act. In particular, Ms Anderson contended in her written submissions that she should not have been assessed to pay child support, because she was not a “parent” within the meaning of s 29(2) of the CSA Act by reason of Family Court orders giving “sole parental responsibility” of her three children to Ms Anderson’s former husband. This submission plainly raised a question of law, being the construction of the CSA Act and in particular s 29(2).

22    In light of Ms Anderson’s submissions at the hearing to the effect that she accepts the definition of “parent” as explained in such cases as Masson, it appears that Ms Anderson no longer presses this aspect of her case. To avoid ambiguity however, I note that, for the purposes of considering whether orders should be made pursuant to r 7.23, I would not be persuaded that Ms Anderson’s belief that she has the right to obtain relief in the Court from the Child Support Registrar on this basis would be reasonable. I so find because:

    Section 29(2) specifically provides that the Registrar must be satisfied that a person is a parent of a child only if in turn satisfied that, inter alia, the person is or was a party to a marriage and a child was born to the person, or the other party to the marriage, during the marriage (s 29(2)(a)). In the present proceedings there appears to be no dispute by Ms Anderson that she was assessed for child support in respect of children borne to her.

    It appears clear that Ms Anderson is a “parent” to her children as explained by the High Court in Masson at [26].

23    Further, and in any event, if Ms Anderson were to initiate proceedings seeking relief on the basis that she was not a “parent”, she has not identified how the material in “a copy of the entire Nichles file to the Court, including all documentation, correspondence, applications, metadata, and audio recordings; with an electronic copy provided free of charge to [Ms Anderson]” would be directly relevant to that legal question, including any submissions Ms Anderson could make in seeking relief.

24    Second, at the hearing Ms Anderson submitted that “fraud was the main issue” (transcript 17 June 2025 page 6 line 27). In particular Ms Anderson submitted:

MS ANDERSON: However, the fraud committed by my ex-husband, and given that I’ve got evidence there in that first document, the first document out of those three, that evidence shows that they were well aware of the reasons for needing relief from them, well aware that I was asserting fraud, well aware that I wanted his original – his actual income investigated, his capacity to earn, rather than his reported income, and I even gave them the name and contact of the person that they needed to get the information from. So I gave them everything that they needed to do that investigation. Mr Nicholls then decided that he did not want that investigation to occur so that he then said to them, and they admit this in their submissions, that he has withdrawn the requirement for me to produce further child support but that is simply to block the investigation.

HER HONOUR: All right.

MS ANDERSON: And as a result, they should have still continued with the investigation because they had the power to do so, and that would have determined that fraud actually did occur and the department should and have – should have had an obligation, or they did have an obligation, to report that fraud to authorities and to make sure that they recalculated what I actually owe.

HER HONOUR: All right.

MS ANDERSON: I wouldn’t have this debt. I am certain I do not have this debt but I can’t get the actual financial information or see what he told them or what they’ve been discussing because I want the recordings of his conversations with them too so that I can rebut anything he has said and that that then demonstrates that he has been lying to courts and authorities for seven and a half years in order to harm me.

(transcript 17 June 2025 pp 6-7)

25    The nature of the relief to which Ms Anderson contends she may be entitled, because of her reasonable belief, is unclear. It is particularly unclear to me whether Ms Anderson contends she may be entitled to relief against the Registrar, or against her former husband.

26    To the extent that Ms Anderson claims that she may be entitled to relief against either party because she should not have been assessed to pay child support because of alleged fraud committed by her former husband, she has not identified how the material in a copy of “the entire Nichles file” in the possession of the respondent would be relevant to that issue. Ms Anderson contended at the hearing that her former husband:

…did not want that investigation to occur so that he then said to them, and they admit this in their submissions, that he has withdrawn the requirement for me to produce further child support but that is simply to block the investigation.

(transcript 17 June 2025 page 7 lines 40-43)

27    However, for the purposes of r 7.23(1), on the material before me:

    I am not persuaded that a decision of Ms Anderson’s former husband to desist from seeking further child support is, of itself, supportive of a reasonable belief in Ms Anderson that the motive for the decision was to avoid investigation by the Child Support Agency for alleged fraudulent conduct. There is no evidence before the Court which could possibly invite me to draw that inference.

    Ms Anderson’s allegations concerning her former husband, the entity Consortio, her former husband “stealing” her client, and her former husband using his company as “an instrument of fraud”, appear to be unsubstantiated assertions on her part. In any event, Ms Anderson’s further assertions that she “told [the Child Support Agency] about it and they did not investigate and they had an obligation to investigate that fraud” (transcript 17 June 2025 page 12 lines 17-18) suggest that Ms Anderson may already have sufficient information to allow the commencement of a proceeding, and that an order in the terms she has sought would be precluded by r 7.23(1)(b).

    I am not persuaded that Ms Anderson’s belief that officers of the Child Support Agency would aid and abet Ms Anderson’s former husband to commit fraud is reasonable. In particular, I am not satisfied that the Child Support Agency made any admission to that effect in its submissions as contended by Ms Anderson at the hearing (transcript 17 June 2025 p 12 line 4).

28    Third, it is also plain that Ms Anderson takes issue with the Child Support Agency for garnishing her income, in circumstances where she contends that she has a disability. Even assuming however that Ms Anderson reasonably believes that she may have the right to obtain relief against the Child Support Agency because of its actions (or inactions), on the submissions and evidence before the Court I am not persuaded that Ms Anderson has satisfied r 7.23(1)(b), namely that Ms Anderson does not have sufficient information to decide whether to start a proceeding in the Court to obtain that relief. I have formed this view given the detailed evidence relating to Ms Anderson’s interactions with the Child Support Agency as deposed in her affidavit of 31 March 2025, in particular paras 41-54 and paras 69-90. I further note the evidence in the affidavit of Ms Jenny Davenport, in particular the chronology of events at paras 4.1-4.8 and the annexures to that affidavit (being 18 pages including correspondence with Ms Anderson).

29    Finally, as Mr Walpole for the Registrar submitted, Ms Anderson also has open to her a number of alternative pathways of review of the decision of the Child Support Agency of 7 April 2025 refusing to change the assessment to reduce Ms Anderson’s child support payments to $0 from 12 August 2019. In particular:

    Section 80 of the CSRC Act which permits objections to be made against decisions defined in that section, including particulars of administrative assessments of child support; and

    Sections 111, 116 and 118 of the CSA Act which permit applications referable to child support and variations of support payable.

30    Ms Anderson rejected the prospect of an application being brought by her pursuant to ss 111, 116 and 118 of the CSA Act because:

…the Federal Circuit and Family Court of Australia don’t have jurisdiction over fraud by government departments. It’s an administrative law issue….

(transcript 17 June 2025 page 11 lines 20-22).

31    In circumstances where an applicant satisfies the requirements of r 7.23, the Court retains a discretion as to whether to make the order sought (Trentham Enterprises at [12]). In this case I am satisfied that Ms Anderson’s case does not satisfy those requirements. However in any event, I take the view that the alternative modes of review available to Ms Anderson would weigh against the discretionary exercise of the Court’s power under r 7.23.

32    The relief sought by Ms Anderson in para 4 of her application is refused.

Injunctive Relief

33    In summary, in paras 1-3 of her application Ms Anderson seeks injunctions suspending further payment of any child support by her and any further garnishing of child support from her salary, and an order that the amount of funds paid by Ms Anderson to the respondent from 2018 until the present date be placed in trust with the Court.

34    Rule 7.01 of the Federal Court Rules provides:

7.01 Order before start of proceeding

(1) If a matter is urgent, a person who intends to start a proceeding (a prospective applicant) may apply to the Court, without notice, as if the prospective applicant had started the proceeding and the application had been made in the proceeding, for an order:

(a) granting an injunction; or

(b) if the matter relates to property:

(i) for the detention, custody, preservation or inspection of the property; and

(ii) to authorise any person to enter any land, or do any other act or thing, for the purpose of giving effect to the order; or

(c) if the matter relates to the right of a prospective applicant to an amount in a fund—that the amount in the fund be paid into Court or otherwise secured; or

(d) appointing a receiver with the power of a receiver and manager.

(2) An application mentioned in subrule (1) must be in accordance with Form 12 and accompanied by an affidavit stating the facts on which the prospective applicant relies.

(3) A prospective applicant seeking an order under this rule must give an undertaking to the Court to start a proceeding in relation to the subject matter of the application within 14 days after the application has been determined.

Note: Without notice is defined in the Dictionary.

35    Rule 7.01 has been the subject of consideration in a number of cases including Marika [2017] FCA 632. As Reeves J observed in that matter:

8.    For present purposes, to succeed in this application, the prospective applicants are required to show that (a) there is a serious question to be tried; and (b) the balance of convenience favours the grant of the injunction : Australian Broadcasting Commission v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at [65] (Gummow and Hayne JJ, Gleeson CJ and Crennan J agreeing at [19]). These considerations apply in public law proceedings: Re Minister for Immigration and Multicultural Affairs; Ex parte Fejzullahu (2000) 171 ALR 341; [2000] HCA 23 at [7] per Gleeson CJ. Further, in Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156, the Full Court emphasised that the strength of an applicant’s case is a factor to be considered in determining where the balance of convenience lies.

36    In the present matter Ms Anderson has not offered an undertaking as required by r 7.01(3). However in any event, I am satisfied that the Court should not grant the injunctions sought by Ms Anderson.

37    First, as matters presently stand I am not satisfied that there is a serious question to be tried in the terms explained by Reeves J in Marika, reiterating principles explained in such authorities as Australian Broadcasting Commission v O’Neill (2006) 227 CLR 57; [2006] HCA 46 and Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156.

38    I understand that, at the hearing, Ms Anderson ceased to press her argument that she was not the “parent” of her children for the purposes of the CSA Act. In the interests of certainty, I note that, for reasons I have already explained, I do not consider that there is merit to that argument at this interlocutory level in light of such cases as Masson, and the terms of s 29(2) of the CSA Act.

39    To the extent that Ms Anderson continues to press a claim that she has been the victim of fraud by either or both her former husband and the Child Support Agency such as to warrant the grant of an injunction, it is fundamental, and long established, that if a case of fraud is to be mounted, it should be pleaded specifically and with particularity: Forrest v Australian Securities and Investments Commission [2012] HCA 39 at [26], KTC v David [2022] FCAFC 60 at [116]. While Ms Anderson submits that she is not in a position yet to plead a case of fraud because she requires more information, she is required to at least identify with some precision the nature of the proceedings she proposes to commence. Ms Anderson has not done so, other than to assert that she has been the victim of fraud and a conspiracy between a government agency and her former husband. As matters stand, this assertion is not supported by any material of substance before the Court. Not only is the assertion not supported by any material of substance (even at this interlocutory level), but Ms Anderson has not identified with any specificity an act(s) of allegedly fraudulent conduct by the Registrar.

40    Second, I am not persuaded that the balance of convenience favours Ms Anderson in respect of the relief sought by her in her application. As I have already observed, where it appears that Ms Anderson’s primary concern is that she be relieved from the garnishing of her income for child support payments, the statutory mechanisms I identified earlier in these reasons for having that assessment reviewed appear to be proper remedies available to her. The grant of an injunction is a discretionary remedy – in my view the availability to Ms Anderson of alternative remedies which are specifically tailored to challenges of child support assessments is a reason to refuse the injunctions she has sought.

41    Finally, the relief sought by Ms Anderson at para 3 of her application whereby significant sums of money – paid by Ms Anderson pursuant to a child support assessment – be essentially refunded by the Child Support Agency and paid into Court, appears to be both unnecessary and improperly burdensome in the circumstances of this case. I am also unable to identify how such an order would benefit Ms Anderson, as distinct from seriously prejudicing the respondent.

42    The injunctive relief sought by Ms Anderson in paras 1, 2 and 3 of her application is refused.

CONCLUSION

43    The urgent application before start of a proceeding is dismissed. Costs follow the event.

Associate:

Dated:    27 August 2025