Director-General, Community Services Directorate v T, D and Y
[2025] ACTCC 2
•8 August 2025
CHILDRENS COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Director-General, Community Services Directorate v T, D and Y |
Citation: | [2025] ACTCC 2 |
Hearing Date: | 18 June 2025 |
Decision Date: | 8 August 2025 |
Before: | Magistrate Stewart |
Decision: | See [26] |
Catchwords: | CARE AND PROTECTION – application of implied undertaking to not use documents and materials in other care proceedings – no such implied undertaking in care and protection proceedings |
Legislation Cited: | Children and Young People Act 2008 ACT Court Procedures Act 2004 ACT Court Procedures Rules 2006 ACT |
Cases Cited: | Harman v Secretary of State for Home Office (1983) 1 AC 280 Hearne v Street [2008] HCA 36 Paul Graham Unicomb v Gregory Scott Blais [2024] NSWSC 903 |
Parties: | Director-General, Community Services Directorate (Applicant) Independent Children’s Lawyer (ICL) (First Respondent) Mother (Second Respondent) Father (Third Respondent) |
Representation: | Counsel K. Musgrove / Director-General, Community Services Directorate J. Cruise / ICL B. Collaery / Father’s Representative |
| Solicitors ACT Government Solicitor (First Respondent) Legal Aid ACT (Second Respondent) Collaery Lawyers (Third Respondent) | |
File Number: | CP 183 of 2023 CP 184 of 2023 CP 185 of 2023 |
MAGISTRATE STEWART:
Introduction
1․The Court has noted a significant increase in applications in the care and protection jurisdiction this year that seek relief from the implied undertaking, or rule, in Harman v Secretary of State for Home Office (1983) 1 AC 280 (Harman).
2․This matter presents itself as a convenient vehicle to set out a ruling in the context of care and protection proceedings. Whilst this decision cannot bind any other judicial officer sitting in this jurisdiction it may present a helpful guide.
3․Harman enunciated the expectation of the English courts about certain categories of materials in one litigation proceeding not being used in a separate litigation proceeding. Lord Diplock’s decision at 304-305 is oft quoted and worth repeating:
“…an order for production of documents to a solicitor on behalf of a party to civil litigation is made upon the implied undertaking given by that solicitor personally to the court (of which he is an officer) that he himself will not use or allow the documents or copies of them to be used for any collateral or ulterior purpose of his own, his client or anyone else; and any breach of that implied undertaking is a contempt of court by the solicitor himself. Save as respects the gravity of the contempt no distinction is to be drawn between those documents which have and those which have not been admitted in evidence; to make use for some collateral or ulterior purpose of the special advantage obtained by having possession of copies of any of an adverse party’s documents obtained upon discovery is, in my view, a contempt of court.”
4․In Hearne v Street [2008] HCA 36 (Hearne) the majority stated at [96]:
“Where one party to a 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 leave of the court, use it for any other purpose other than that for which it was given unless it is received into evidence.”
5․I pause to observe that the majority of the Harman applications in the care jurisdiction are filed by the Director General - Community Services Directorate (DG) and pertain to materials previously disclosed by her in the conduct of earlier proceedings on the same file for the same child, or on files for siblings or half siblings.
6․It should also be noted that although materials may be received into evidence at hearing, not all decisions of the Court are published and all care proceedings are conducted in a closed court[1]. This is relevant because both Harman and Hearne are decided on the basis that materials are placed onto the public record a result of being received into evidence. That is not necessarily so with care matters.
7․I think that it is useful to separate the types of materials that appear on care and protection files into categories – affidavits, expert reports and assessments gathered without an order of the Court, Court ordered reports and assessments, care plans that set out what the DG plans to do in terms of her responsibility to a child[2], applications and, sometimes, written submissions. I will also deal with subpoenaed materials.
Affidavits
8․It is trite to observe that not every affidavit filed and served in civil proceedings is done so by the same compulsion as materials produced under discovery.
9․In care proceedings affidavits are often filed in compliance with timetables that are issued by a registrar or magistrate. However, this is not compelled disclosure, it is a function of case-flow management that may or may not be complied with depending on how the party intends to proceed with their case. For example, a party may have no further materials above and beyond what they have already placed before the Court and would have difficulty complying with a filing order “to file and serve any further materials relied upon” in those circumstances.
10․Affidavits and the Harman undertaking were the subject of lengthy consideration by McGrath J in Paul Graham Unicomb v Gregory Scott Blais [2024] NSWSC 903. I draw the following from his Honour’s broad consideration of the topic:
a.To fall within the implied Harman undertaking, disclosure of the documents of information must be compelled.[3];
b.Timetabling orders which require a party to file and serve an affidavit generally do not compel disclosure of specific information;[4] and
c.Filing of affidavits in the usual course of litigation does not involve a compulsory and very serious invasion of privacy and confidentiality as contemplated in Harman and Hearne.[5]
11․Unless a matter proceeds by hearing or contested application, affidavits on care files would not be received into evidence – they are served to the parties and filed on a court file that is not open to a non-party.[6]
12․To explain my findings below in the context of care matters: a child may initially be the subject of a 12 month or two-year order application depending on the child’s age. There may then be further applications to amend or revoke the initial orders. There may also be different files with applications for full siblings and half-siblings (to be clear, by half sibling I mean only one parent[7] is shared).
13․I find that any affidavit previously filed by the DG can be filed without leave by her in a later application relating to the same child. This is because these materials are the DG’s own materials and not filed as a result of compelled disclosure. This is because further applications under the Children and Young People Act 2008 ACT (CYP Act) in relation to the same child are not properly categorised as fresh, new or different proceedings. Subsequent applications under the CYP Act for the same child are applications in the same proceeding. In the words of Harman there is no collateral or ulterior purpose in re-using affidavits in later proceedings in relation to the same child.
14․Similarly, any affidavit that is filed by another party in a care proceeding can be filed and served or relied upon by that party or another party on the same file in later applications without leave of the court.
15․Where there is another care file for a full sibling, there are the same parties – the same parents, the DG and the same over-arching child representative. Each of those parties has already been served with (or created) the material from the other sibling’s file in those other proceedings. No leave vis-a-vis Harman is required to use the other full sibling’s affidavit material from any party.
16․Consideration of litigation for a half-sibling is not as tricky as it may seem at first blush. Where an affidavit has been filed for a half sibling, only part of that affidavit’s contents may be relevant to care proceedings for a different half-sibling. For example, part of the affidavit may relate to a parent who has little or no contact with their child’s step-sibling. The conduct or parenting capacity of that parent may have little or no relevance to care proceedings for their child’s half-sibling. It does not stop the affidavit from one file from being filed and served on a step-sibling’s file without leave. Objections may be taken to it[8], but there is no apparent requirement to seek leave for release from the Harman undertaking in such a circumstance.
Reports filed without a Court order
17․Such materials are filed voluntarily and draw the same immunity from the Harman undertaking as affidavits. I find that they cannot be subject to an implied undertaking in any circumstance of care litigation by a party that has previously filed them. Similarly, where reports have been voluntarily filed on a care file they can (in theory) be filed and served without leave on any other care file by any party who has been previously served with them. Relevance to a different care file may be a separate issue.
Court ordered reports
18․The Court has power to make appraisal and assessment orders under the CYP ACT[9] Such orders inevitably result in reports being filed and served. Attendance by parents is a result of an order – although some parents choose not to attend. I am not aware of contempt proceedings in the circumstance of parental non-attendance at assessments. A non-attending parent is deprived of the benefit of being observed with the child who is the subject of the litigation and further deprived of the benefit of input into the report.
19․In those circumstances the same findings apply to Court ordered reports. They do not involve compulsory disclosure in the sense of Harman and Hearne and are not subject to an implied undertaking pursuant to Harman for any party who has been served with them in a care proceeding.
Care Plans
20․Care plans are usually filed and served voluntarily by the DG, bearing in mind that the Court cannot make a care and protection order without considering a care plan.[10] In that sense, an order will generally not be granted unless a care plan is filed. This does not amount to compulsory disclosure.
21․I find that care plans are not subject to an implied undertaking pursuant to Harman for any party who has been served them in a care proceeding. Subject to considerations of relevance, care plans may be filed in other proceedings by any party who had created or been served with them in another care proceeding.
Applications and written submissions
22․I see no reason to regard these two categories of materials in a different manner to affidavits, care plans and court ordered reports. Applications and written submissions may be the subject of court orders that attempt to ensure case-flow management. If a party chooses not to file them, they cannot be considered by the Court. The party loses the opportunity of persuasion. They are not compelled disclosures and do not attract the protection of Harman.
Subpoenaed materials
23․Subpoenaed materials are involuntarily produced by order of the Court. They form a similar category of documents to materials produced by a civil discovery process. Subpoenaed materials remain with a file for the life of a file unless ordered otherwise.
24․Whilst they may require an application for further access and copying, subpoenaed materials on the same file for the same child do not require an application for release from the Harman undertaking in later applications.
25․I do expect that there should be an application for such a release when a party seeks to subpoena materials produced in relation to a different child or file. One might also expect a challenge to the relevance of such materials where there is not a common parent on the file in which the application is filed.
Ruling
26․I find that in relation to care and protection proceedings, the implied undertaking in Harman does not apply to filed affidavits, reports, care plans, applications and submissions. The implied undertaking does not apply to subpoenaed materials where subsequent applications are made for the same child.
27․I thank the DG and children’s representative for their helpful submissions.
| I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the decision of his Honour Magistrate Stewart Associate: Zeinab Elsheekhly Date: 8 August 2025 |
[1] Court Procedures Act 2004 ACT s 72
[2] Children and Young People Act 2008 ACT (CYP Act) s 455
[3] Unicomb at 243
[4] Unicomb at 248
[5] Unicomb at 246,247 and 249
[6] Court Procedures Rules 2006 (ACT) r 2903 (2)(i)
[7] To be clear ‘parent’ also includes ‘carer’ in this decision
[8] Bearing in mind that the rules of evidence do not apply without intervention from the Court – see s 716
[9] CYP Act (ACT) Part 11.2
[10] CYP Act (ACT) s 464(1)(b)
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