Re David, Alan and Mary and the Director General Family and Community Services

[2014] NSWSC 1077

Supreme Court

New South Wales

Medium Neutral Citation:	Re David, Alan and Mary and the Director General Family and Community Services [2014] NSWSC 1077
Hearing dates:	6 November 2013, 10 February 2014
Date of orders:	03 November 2014
Decision date:	03 November 2014
Jurisdiction:	Equity Division
Before:	Slattery J
Decision:	See paragraph [119]
Catchwords:	EQUITY - confidentiality - breach of duty of confidentiality - defences - plaintiff seeks an injunction to prevent the defendant from disclosing information to the NSW Police - whether defendant is obliged under s 316 Crimes Act to disclose the information - whether the defendant has a "reasonable excuse" not to disclose the information
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998, ss, 23, 27, Chapter 16A, 90 Crimes Act 1900 (NSW), ss, 61, 66C, 316 Evidence Act 1995, ss 126B, 126F, 138, 128
Cases Cited:	A v Hayden (No. 2) (1984) 156 CLR 532 Commonwealth v John Fairfax & Sons Limited (1981) 147 CLR 39 Herne v Street [2008] HCA Re David, Alan and Mary and the Director General, Family and Community Services [2013] NSWSC 1319
Category:	Principal judgment
Parties:	Plaintiff: (Aunt) [not published] First Defendant: Director General, Family and Community Services Second Defendant: (Mother) [not published] Third Defendant: (Father) [not published] Fourth Defendant: Independent Children’s Lawyer Ananda Hall Fifth Defendant: Children’s Court NSW (Bidura) Sixth Defendant: (Grandmother) [not published]
Representation:	Counsel: Plaintiff: M. W. Anderson First Defendant: K.J. Edwards Second Defendant: n/a. Third Defendant: S. M. Leis Fourth Defendant: R. Francois Fifth Defendant: n/a. Sixth Defendant: n/a. Solicitors: Plaintiff: Merridy S Gordon, Pearson Family Lawyers First Defendant: Ian Linwood, NSW Crown Solicitor's Office Second Defendant: Laurie Robertson, Robertson Solicitors, Children’s Law Chambers Third Defendant: Mark Whelan, Mark Whelan Lawyer Pty Limited, Children’s Law Chambers Fourth Defendant: Ananda Hall, Independent Children’s Lawyer, Legal Aid Commission of New South Wales Fifth Defendant: n/a. Sixth Defendant: n/a.
File Number(s):	2013/267442
Decision under appeal	File Number(s): 2013/267442

Judgment

1. In these proceedings Ms Alice Taylor (not her real name) seeks injunctive relief to restrain the Director-General of the Department of Family and Community Services, from providing to New South Wales Police documents in the Department’s possession. The documents contain information about sexual contact she had with her biological brother, Mr Jonathan Taylor (not his real name) about 20 years ago. Ms Taylor’s and her brother’s sexual encounters occurred in the context of a thoroughly dysfunctional family environment at a time when Ms Taylor was over the age of 18 but her brother Jonathan was only a minor, aged 12.

2. The information in these documents only came into the Department’s possession during recent Children’s Court proceedings. Ms Taylor presently has parental responsibility for Jonathan’s three biological children – David, Alan and Mary. In early 2011 the Department of Family and Community Services (“FaCS” or the “Department”) removed the children from Jonathan’s care and placed them with Ms Taylor, who assumed day-to-day responsibility for their care. As part of that process, FaCS officers conducted background checks about Ms Taylor and her partner in which she disclosed personal matters about her upbringing and medical history. She did not disclose to FaCS her then decades-old sexual contact with her brother.

3. In late 2011, after a series of events detailed later in these reasons, the Departmental officers became aware from a medical practitioner that Ms Taylor had consulted that the sexual contact with her young sibling had taken place. With that knowledge they contacted Ms Taylor and asked her to participate in an interview with two of the Department’s caseworkers.

4. The parties contest many of the circumstances of that interview. But it is not in contest that during it Ms Taylor made disclosures about her former sexual contact with Jonathan. She says she was assured in the interview that her disclosures would remain confidential. And as a result, she says she believed they would. Departmental officers considered the record that was made of Ms Taylor’s interview, following which the Department decided to revoke Ms Taylor’s parental responsibility over the children. Relying upon these interview disclosures the Department also lodged an application in the Children’s Court under the Children and Young Persons (Care and Protection) Act 1998 ("the Care Act") section 90 to remove the children from Ms Taylor’s care on a permanent basis.

5. Shortly after FaCS commenced that Care Act s90 application the NSW Police communicated a Care Act Chapter 16A Request to FaCS seeking any notes and materials detailing the allegations against Ms Taylor arising out of her disclosures. Ms Taylor was made aware of the NSW Police request. She sought injunctive relief to prevent the transfer of that information in accordance with the request.

6. On 3 September 2013 Bergin CJ in Eq granted interlocutory relief restraining the Department from releasing to the NSW Police any information about Ms Taylor's interview disclosures: Re David, Alan and Mary and the Director General, Family and Community Services [2013] NSWSC 1319. The final hearing of Ms Taylor’s application for injunctive relief took place over two days, 6 November 2013 and 10 February 2014. After the hearing the parties were given liberty to file supplementary submissions and the Court reserved judgment on 14 February.

7. Though the arguments are more complicated, the parties’ respective cases may be shortly stated. Ms Taylor contends that her disclosures were made both to the medical practitioner she consulted and to the Department in circumstances of express or implied confidentiality. And Ms Taylor further argues that it would now be unconscionable for the Director-General to provide detail of the disclosures to the Police.

8. The Department argues that through the person of the Director-General it is bound by New South Wales law to transmit this material to NSW Police as requested, or alternatively face criminal sanction under Crimes Act 1900 s 316, the offence of concealing a serious indictable offence. But Ms Taylor’s rejoinder to this is that that the “reasonable excuse” exception within s 316(4) would permit the Department in the circumstances of this litigation not to remit the information to NSW Police. The parties’ respective arguments are detailed further below.

9. The principal contest in the litigation was between Ms Taylor, as plaintiff, and the Department, as the first defendant. Mr M.W. Anderson of counsel appeared for Ms Taylor. Ms K.J. Edwards of counsel appeared for the Department. So that it can be published this judgment uses pseudonyms or titles for all the persons involved.

10. A number of other parties were joined to the proceedings. Ms S Leis of counsel appeared for the third defendant, Jonathan. And Ms R François appeared for the independent representative of the children. The second defendant Ms Ashley Harding, Jonathan’s partner did not appear. The fifth defendant, the Children’s Court, lodged a submitting appearance. Ms Taylor’s mother was named as the sixth defendant in the proceedings but she took no active part in them. She communicated to the Court that she supported her daughter, the plaintiff’s application.

11. In April 2011 the Department of Family and Community Services was established, incorporating the former Department of Community Services (DOCS) as one of its new divisions. Certain of the earlier conversations referred to in these reasons retain references to DOCS in order to accurately record the terms of those discussions.

Background to these Proceedings

12. Alice gave an account of her early family life in her evidence. The Court found her to be a highly credible witness. The following summary of her early life is based on her account, which the Court accepts.

13. Alice was born in the early 1970’s. By the time of her birth her mother and her biological father had separated. She never met her father. Until the age of four she was raised by her mother. In 1974 Alice’s mother commenced a personal relationship with Mr Joseph Taylor. He treated the plaintiff as his daughter – assuming day-to-day responsibilities as her father and gave his surname to Alice. Joseph is the father of the plaintiff’s three siblings: Sarah, born 1975; Jonathan, born 1978; and Brianna, born in 1980.

14. The plaintiff has a close relationship with her sisters, although her relationship with Jonathan is now strained – in large part due to these proceedings.

15. Alice’s childhood was characterised by instability, a lack of financial security, and repeated changes of residence. She recalls that her parents lived in a near-constant state of conflict. Around the age of 12 Alice became conscious that drug use was occurring in the family home. By age 13 or 14 she had come to realise that both her parents were addicted to the drug heroin.

16. The Taylor household experienced a degree of volatility, probably as a consequence of the parents’ habitual drug use. The plaintiff recalls, and I accept, that her parents exhibited erratic and unstable behaviour. The family was evicted from a number of rental properties. During these periods of unpredictable dislocation, Alice and her siblings would often be separated from their parents. They stayed with family friends until their parents found alternative accommodation. Sometimes these periods of separation lasted weeks, but sometimes months.

17. Alice demonstrated an early sense of responsibility and initiative for her family. At age 11 she began working in a local pharmacy, and later at local weekend markets. She remembers that on many occasions her earnings contributed toward the family rent and household bills.

18. When Alice was 16 her mother began treatment through a methadone addiction program, although her stepfather continued to use hard drugs. During Alice’s mid-teen years her parents regularly separated and reconciled, generating cyclical instability for the children. The children would often stay with family friends until their parents reconciled.

19. But by the age of 17, demonstrating quite resilient character in one so young, Alice decided that she no longer wished to live under those conditions. She ceased communication with her father. When her parents decided to reconcile once more a few months later, she found herself alternative accommodation. In the absence of proper parental care she expanded her part time work to help support herself whilst she attended a selective high school in Sydney.

20. During her final year of school, it is not surprising that Alice found it difficult to manage both her work and schooling responsibilities. She decided to leave her education and obtained employment as a receptionist, so that she could better support her mother. Over the next few years she tried several different jobs, often moving from place to place. It was during this period that the unfair burden of responsibility placed on her began to affect her psychologically. She became increasingly anxious and depressed.

21. Her family’s domestic situation continued to deteriorate. Her siblings suffered from the same distressed home environment. In response they too began to exhibit their own behavioural issues. Alice remembers her siblings regularly came under police attention. She attempted to support them financially, as well as emotionally, where she could. From time to time Sarah, Brianna and Jonathan all came to stay with her for periods of days or weeks.

Alice’s Disclosure in Therapy

22. During one of these periods, the incidents material to these proceedings occurred when the younger siblings were staying with Alice. In or around 1990 Jonathan had come to stay with Alice for some time and sexual contact took place between the two on a number of occasions. As indicated earlier in these reasons, at the time Jonathan was 12 years of age and Alice was 20. The nature of these encounters is of no present importance. But it is clear that the contact only occurred for a relatively short period then stopped and never resumed.

23. In 1994 when she was in her mid twenties, Alice began suffering from increasingly severe depression and anxiety. She consulted a psychiatrist, Dr A. As part of the treatment, Alice disclosed many events from her turbulent childhood, including her sexual encounters with Jonathan. But she says, not surprisingly, that she understood that these disclosures were made confidentially in the course of her therapeutic relationship with her doctor and that they would not be disclosed to any third party. The plaintiff’s consultations with and treatment by Dr A continued on and off between 1994 and 1999.

24. Between about 2000 and about 2004 the plaintiff found work in the financial services industry and for a period worked overseas in Europe. During this time she also undertook part-time studies with the Open University UK, completing two to three years of sociology and child psychology. But she was unable to complete her studies. She returned to Australia where an equivalent online course was not offered.

25. Her depression had recurred throughout her time in Europe. In 2004 when she returned to Sydney, Alice recommenced therapy with Dr A for the remainder of that year.

Jonathan, Ashley and the children

26. By the time Alice returned from Europe, Jonathan had become a chronic drug user, of both crystal methamphetamine (‘Ice’) and temazepan (‘Normison’). His consequent encounters with the criminal law resulted in him spending time in Silverwater Detention Centre. There were times after Alice’s return from Europe when Jonathan lived on the street. Alice and her mother Charlotte tried to help Jonathan overcome his drug problem: they assisted him in entering various rehabilitation facilities; they visited him in gaol; and when required, they attended Court with him. But Jonathan would often leave rehabilitation facilities before completing the programs. He continued to relapse into patterns of drug abuse.

27. Jonathan’s long-term partner, Ashley, also experienced substance abuse issues, although these were mainly with alcohol. There were occasions on which she was admitted to hospital for alcohol-related problems. Between 2007 and 2009 the couple gave birth to three children: David, and twins Alan and Mary.

28. As a result of their parents’ substance abuse issues, the three children, David, Alan and Mary experienced a high degree of disruption and instability in their early lives. From 2009 onward Alice, her partner Thomas and Charlotte often intervened to care for the three children. These interventions included periods during which Jonathan would stay in the plaintiff’s home with the children. At other times when both Jonathan and Ashley were in rehabilitation or in hospital, David, Alan and Mary would stay with the plaintiff by themselves. The children also stayed with members of Ashley’s family on occasion.

29. Jonathan and Ashley fought regularly; there appeared to be tensions over money and accusations were made by each of them about the other’s conduct. Alice remembers often receiving phone calls from both Ashley and Jonathan, each accusing the other of substance abuse.

30. In early 2010 the couple separated. Jonathan and his children moved into the plaintiff’s house in an inner suburb of Sydney during April of that year on the condition that Jonathan would neither take drugs, nor steal from the family. But about five or six weeks into that arrangement it became apparent that Jonathan had used drugs within the household. And Alice and her husband realised that he had stolen money and personal items from their family home. As a consequence, Alice and her partner, Thomas, had to ask Jonathan to leave.

31. Jonathan left the house, taking his children with him. What had previously been a close relationship between the plaintiff and her brother became strained. They were no longer on speaking terms. After Jonathan had moved out a reconciliation of sorts took place between himself and Ashley. But the situation deteriorated quickly. Jonathan, Ashley and their children moved from place to place: both together and at times apart. By the end of 2010 FaCS (then the Department of Community Services) had become involved with the family through the Brighter Futures program and were in contact with the plaintiff regarding the welfare of the three children.

32. On multiple occasions, and usually at Jonathan and Ashley’s express request, the plaintiff and Thomas (as well as other family members) took care of the three children. It was often on short notice and for irregular periods of time, sometimes days and sometimes weeks. Both the plaintiff and Thomas were working full time, which intensified the burden of their volunteer commitment to the care of the three children. Alice found the children themselves challenging to manage, as they only slowly became accustomed to Alice and Thomas’s more disciplined family routine, when they would suddenly return to their parents’ wholly unstructured care. It was an unsustainable cycle. In late November of 2010 Jonathan, Ashley and the children entered a rehabilitation centre in country New South Wales.

The Children are placed with the Plaintiff

33. On 1 April 2011 FaCS made the decision to remove the children from Ashley and Jonathan’s care. A case worker from the Department contacted Alice, or her mother, and requested that they look after the children on an interim basis. Ashley and Jonathan supported the placement, as did Ashley’s family. So the plaintiff agreed to care for them.

34. Immediately after the interim placement began, assessments were conducted by interview and police checks were undertaken by Alice and Thomas to confirm their suitability for the role. During these checks the plaintiff disclosed that she had previously suffered depression for which she had consulted a psychiatrist and been prescribed medication from time to time. But the plaintiff did not disclose the occurrence of her sexual contact with Jonathan from years before.

35. In May/June 2011, FaCS informed Alice that they were seeking a permanent placement for the children. The Department’s caseworkers indicated to her that restoration of the three children to their parents was unlikely to be possible. The caseworkers asked the plaintiff to care for the children on a permanent basis. The plaintiff agreed.

36. But Jonathan and Ashley were unhappy. Although they had supported the interim arrangement, neither parent wished for the children to be permanently placed with the plaintiff. Nor did they wish for the children to be placed permanently with anyone else. They reacted badly to news of the Department’s view.

37. From the outset of the placement with Alice, care plans under the Care Act had been established to allow Jonathan and Ashley to spend time with the children on a supervised basis. Both parents asked Alice to see the children more frequently than the care plan permitted. Jonathan was particularly persistent in this request. But the plaintiff was not authorised to accede to these requests. She did not wish to jeopardise the children’s welfare or the stability of their placement with her by acting inconsistently with what the care plan authorised. Alice rejected her brother’s demands to see the children more. He reacted badly to this.

38. On 9 December 2011 the Children’s Court ordered the children be placed under the parental responsibility of the Minister for Family and Community Services for a period of two years. Pursuant to that order, all aspects of parental responsibility were allocated to the Minister for a period of 12 months. And all aspects of parental responsibility, other than contact issues, were allocated jointly to the plaintiff and her mother for a further period of 12 months.

33. Ashley and Jonathan were initially permitted to see the children every 2 weeks for 3 hours under supervision. Jonathan continued to request additional time with the children. Alice told him that her authorisation under the Care Plan had not changed.

34. Jonathan became increasingly agitated about what he perceived was insufficient contact with his children and he directed his anger at Alice. She quickly became aware that her brother was threatening to expose sensitive information about the family’s history, if he was not granted more time with his children. One such revelation included his sexual contact with the plaintiff in their younger years.

35. Alice had begun to consult Dr A again sometime in 2010. In the course of her therapy sessions with him in the first half of 2012 Alice recounted the threats that Jonathan was making and her concern about them to her psychiatrist.

FaCS learns of the Past Sexual Relationship

42. On 11 July 2012 FaCS received a phone call from Jonathan concerning “information the department did not know about”. And on 6 August 2012 FaCS received a telephone call the Departmental Child Protection Helpline from a person described only as a “notifier” about events in the lives of the plaintiff and her brother including some limited information about the early sexual contact between Alice and Jonathan, as well as the history of drug usage by the plaintiff’s mother. It is sufficiently clear from the material communicated on 6 August that it records disclosures that Alice made to Dr A.

43. Jonathan confirmed in these proceedings that he did speak with the NSW Police in 2012 about events that took place between himself and his sister, Alice when he was a minor. Although he spoke to the Police on several occasions that year, he neither finalised nor signed a statement for the Police.

44. Jonathan recalls a conversation with a female police officer in Wollongong, who said: “We don’t have enough information (about the events) and we can’t marry up the timeline properly”. The officer then asked him whether he would be willing to speak on a police telephone to his sister about this subject to see if she would make any admissions to him that could be recorded. Mr Taylor told the Police: “I am not prepared to do that”, to which she replied: “Well we can’t take this matter any further”. He then confirmed to the officer: “I don’t want to take the matter any further”.

45. Whatever were his past threats of disclosure, Jonathan’s change of heart was complete. Mr Taylor has reiterated throughout these proceedings that he does not wish: to give the police any more information; to complete a statement; to participate in any interviews; for his sister to be prosecuted; or, to jeopardize the placement of his children with his sister.

46. But the Department was now in possession of some information from him. And in mid-2012 Dr A decided that he would need to report to FaCS the confidential information disclosed to him by Alice. The plaintiff recalls, and I accept, that on 3 August 2012 Dr A informed her he was going to contact FaCS, although he did not tell her what he was going to say. The plaintiff remembers, and I accept, that she very distressed upon learning this from Dr A and asked him not to contact the Department. On 6 August Dr A did ring the Department with information about Alice’s sexual contact with Jonathan. On 3 September 2012, Dr A sent a further letter to FaCS in which he also disclosed matters arising from his therapeutic relationship with the plaintiff, including her early sexual contact with Jonathan.

47. Dr A’s decision to report the information was partially driven by the scheme of mandatory reporting under the Care Act. Under s 27 of the Act any person who, in the course of their professional work, discovers information that a child is “at risk of serious harm” is obliged to report that situation to the Department. The provision specifically cites health care professionals as a class bound by this reporting obligation. During these proceedings there was argument between the parties about whether the present situation could accurately be characterised as one involving a “risk of serious harm” as defined by s 23 of the Act. But it was not necessary for the Court to assess whether Dr A’s conduct conformed with the Care Act.

48. The plaintiff says that early in the morning on or about 10 August 2012 she was contacted by Officer 1, a case worker from FaCS. The subsequent contact between Alice and her fellow caseworker Officer 2 provides the context for the only factual contest in these proceedings.

49. Alice says that Officer 1 said to her:

“We need to submit a 9 month assessment of the children from the time of permanent placement. We will need to come to the house and ask you some questions about the children. This is a standard process.”

50. But later that same day, Alice recalls Officer 1 called her again, and said:

“O1:   Can you talk?

AT:   I am on my way to an appointment, let me just sit down. As I am walking…

O1:   We have received a phone call in which serious allegations have been made concerning your past. We want you to come in as soon as possible and answer some questions. It is a one on one meeting so you will need to come alone.”

51. Officer 1 denies saying in this phone call that it would be a “one on one meeting” or that “[Alice would] need to come alone”. Officer 1 maintained that as a FaCS caseworker, she would never have informed a client or family member that a meeting would be private. She cites as a basis for her not giving any such assurances that she would not have departed from Departmental practice about this.

52. But in my view she did say to Alice that the meeting would be “one on one”. But I accept she did not say “you will need to come alone”. The latter is unlikely to have been said because Alice, a careful person, came with other family members on 14 August.

53. After this conversation the plaintiff recalls that she had a consultation with Dr A. He said to her: “I have spoken to Officer 1 at DOCS and disclosed the matters your brother was threatening you with”. The plaintiff was distressed; she had not authorised Dr A to disclose what she understood to be personal and confidential information.

54. Alice was shaken by the call with Officer 1. I accept that she wished to confirm that there would only be herself and Officer 1 present at the discussion. She also wanted to know whether it would be confidential. I accept that the plaintiff attempted to call Officer 1 several times over the following days, but her calls were not returned. The plaintiff also emailed Officer 1 to confirm that the meeting would be “just us” (meaning herself and Officer 1). But Officer 1 did not respond.

55. Officer 1’s version of the events is that she did not recall receiving any message that the plaintiff had called. She said she believed that if Alice had called, she would have returned it, given the sensitive nature of the proposed interview and the good rapport that had developed between them. I accept this as correct. The best explanation of events is that she did not receive the messages left for her. Officer 1 did remember receiving an email from the plaintiff at 11:31am on 13 August. But she says that she did not see the email until after the interview she held with Alice on 14 August.

The 14 August Interview

56. On 14 August 2012 Alice attended the FaCS office with her mother, sister, and partner Thomas. Her version of the events of that day is that she was met by Officer 1 and could see that there was another person present in the background. Introducing that person, she says that Officer 1 said to her:

“O1:   That is Officer 2. She is going to be your case manager in the future and it is important that she be present.

AT:   I don’t know her. Can Thomas come to the interview?

O1:   No this is not how things are done. The information will be confidential.”

57. Officer 1’s version of the occasion differs from the plaintiff’s. I find that a combination of both versions is what occurred. Officer 1 recalls that she was alone when she met Alice at reception, who was with her sister, her mother and her partner. Officer 1 remembers, and I accept, that as the plaintiff walked toward her, Thomas was a few steps behind the plaintiff but Alice did not ask whether Thomas could come to the interview. Officer 1 said to the plaintiff: “Alice, Thomas can’t come with you”. Officer 1 maintains that there was no further conversation after that. Officer 1 was herself conscious that extremely sensitive information was to be discussed. I accept her evidence that she did not know whether Alice’s partner Thomas knew about what Officer 1 was proposing to discuss. It was imperative for her to require a one-to-one interview in these circumstances, and I accept her evidence that she did. But I also find that this same imperative drove Officer 1 to say to Alice at this time, as Alice claims, “the information will be confidential”.

58. Alice is insistent in evidence that she was given an assurance of confidentiality. This presents a central puzzle in this case. Officer 1 was a plainly competent and professional caseworker, who I accept would not readily depart from Departmental practice to give assurances of confidentiality. And her version is largely corroborated by Officer 2, who assisted her in the 14 August interview with Alice. But Alice was sufficiently distressed about Jonathan’s then threats to disclose her past sexual contact with him that she had consulted a psychiatrist about the matter. She was deeply concerned about the effect that the disclosure to the Department might have on her continuing responsibility for the three children. She was apprehensive about what might happen to any information she did disclose. In my view that was obvious to Officer 1 who gave an assurance of confidentiality before the interview began. Alice is a plainly intelligent person who understood some of the legal implications of what she was doing by going into this interview. I find that Officer 1 did say something sufficient to ground the belief Alice claims she had that information would not go past the interview she was holding with Officer 1 and Officer 2.

59. Officer 1 remembers that they did not join Officer 2 until they arrived at a suitable interview room on level 4 of the building. At that point, Officer 1 says that she introduced Officer 2, saying: “This is Officer 2. She is going to take over as your new case worker”. Officer 2 confirms this, remembering that Ms Taylor did not say that she was concerned about her presence. I accept that this is what happened. By that time Alice had left her family behind in another part of the building. She had less energy for that reason to argue with Officer 1 about the presence of the other person in the interview even though she had previously been told that it would be “one to one”. The next hour was going to be hard for her. She was intuitive enough not to risk starting with an unnecessary argument.

60. Officer 1 remembers telling the plaintiff, and I accept, that Officer 2 would be taking notes. But she denies that she said the information would be confidential. I accept this. The assurance of confidentiality did not have to be repeated. It had been given outside.

61. Once the meeting began, it was primarily Officer 1 and Alice who discussed the past events that had been reported to the Department. During the course of the conversation, Officer 1 remembers, and I accept as accurate, that the plaintiff looked unwell; that her eyes were ‘red and puffy’ and that Alice admitted a degree of such shame that she said “I can’t even look you in the eye”. The plaintiff found the questions extremely distressing and struggled to answer some of them.

62. Officer 1 and Officer 2’s recollection of the basic details of the interview are similar; both maintain that the interview started around 3pm and was finished by approximately 4:15pm. They recall that Ms Taylor was visibly distressed and cried at points during the interview; Officer 1 says she tried to make her as comfortable as possible, which I accept she did. Officer 2 confirmed that Officer 1 paused the interview on several occasions in order to allow Ms Taylor to recover her composure. She also encouraged the plaintiff to request that the notifier write a report in support of her not being a risk to the children.

63. Officer 2 took notes during the interview although the plaintiff was neither shown those notes, nor provided with a copy of them. After the interview, by email as well as in a subsequent meeting, the plaintiff says she requested a copy of the notes Officer 2 took on 14 August. But her request was refused. The first time that Alice saw the content of the notes was when they were attached to the Care Act, Section 90 Application files by FaCS on 5 December 2012. The plaintiff disputes the accuracy of the notes taken during the 14 August interview; she believes they were presented without context and are not an accurate reflection of either what she was asked or what was said. It is not necessary in these reasons to consider or decide upon the accuracy of the notes. It is sufficient for present purposes to find that the notes contain admissions by Alice of her sexual contact with Jonathan, when he was aged 12.

64. Officer 1 also maintains, and Officer 2 concurs, that there was no discussion with the plaintiff about whether or not the information she provided would be used as evidence in Court, and that the plaintiff did not request the notes taken by Officer 2 during the interview. But I accept Alice’s version on this subject. She asked for the notes by email after the meeting. It is likely she did so at the meeting.

65. Whatever the exact course of events, there are aspects of the interview that are not in dispute. The plaintiff was: not legally represented at the time; not provided with details of the questions that would be asked before the interview; not offered the opportunity to have a lawyer present; not offered an extended break during the interview; not told that anything she disclosed during the interview would be used in evidence and could be used against her in a Court of law; and not advised at any time on 14 August by Officer 1 that she was not obliged to answer the questions put to her. Should Alice ever face a criminal prosecution in respect of her sexual contact with Jonathan then these matters will no doubt bear upon whether any of the contents of the notes can be admitted into evidence against her. That is not in issue in these proceedings.

66. The plaintiff maintains that had she had the benefit of legal advice, she would have chosen not to have participated in this interview. I accept her evidence as to this.

FaCS “De-Authorises” the Plaintiff as Carer for the Children

67. On 24 August 2012 both the plaintiff and her mother attended a further interview at FaCS. They were asked more questions by Officer 1, and they answered those questions.

68. At a meeting on 11 September 2012 with another Department employee, Officer 3, the plaintiff was informed that as a consequence of the information she had provided during her interview of 14 August, she was “de-authorised”, the expression that was used by FaCS, as a kinship carer for the children. At the meeting I accept that she said to Ms Officer 3:

“AT:   Why? You said everything would be okay and that the children would be able to remain with us. You also said that it was likely that this might not be included in the section 82 report.

O3:   It was reviewed by a different manager and was due to legislation that we overlooked.

AT:   What legislation?

O3:   I do not have it with me, but I will follow up on this. The children cannot be cared by you any longer. Can you leave the house until we find another placement? Otherwise the children will need to be removed. Either you go or we take them into care.”

69. By Thursday 13 September 2012 the existing home situation required action in response to Officer 3’s request. So in the    interests of the children’s stability the plaintiff made arrangements to stay in a hotel at her own expense. At this time she began a daily process in which she moved out of her home each evening and returned in the mornings, so as not to be there at night.

70. The plaintiff sent a letter to FaCS requesting that they review their decision. A meeting between the plaintiff, her partner Thomas, Officer 2 and another Department employer, Officer 4, was arranged for 16 October. At that meeting she was told by FaCS staff that an internal review of the decision had been conducted and the decision would not be reversed. FaCS subsequently confirmed their decision to “de-authorise” the plaintiff and her mother as kinship carers by a letter dated 17 September 2012.

71. On 5 October 2012 Alice requested a copy of the notes taken during the 14 August interview. The plaintiff recalls that Officer 2 sent the plaintiff an email informing her that “she could not send (the plaintiff) notes of Officer 1 in relation to the interview and that they were otherwise confidential”.

72. The record shows that Officer 2 replied:

“I can’t give you the minutes of the meeting you had with Officer 1 as they belong to our file which is essentially confidential. You can contact our Right to Information Department however to try to access information we hold outside of court processes.”

And she provided those contact details as part of the email.

FaCS makes a Section 90 Application

73. Those notes were subsequently deployed in the Children’s Court. As a result of the information provided by the plaintiff the Department made an application under s 90 of the Care Act to rescind or vary the order granting parental responsibility to the plaintiff. The notes of the interview were used in support of the application. The applicant in the Children's Court was an acting manager casework officer with the Department.

74. On 5 December 2012 the Director-General filed the application seeking leave under s 90(2) of the Act to bring an application to alter the last care order. Care Act, s 90(2) provides:

“(2)   The Children’s Court may grant leave if it appears that there has been a significant change in any relevant circumstances since the care order was made or last varied.”

75. The Director General’s application stated that in accordance with section 90(2), the significant changes in relevant circumstances since the orders were made or last varied were as follows:

“As set out in the attached affidavit of [officer named] affirmed on 5 December 2012, information has been disclosed to Community Services since the making of the final orders on which Community Services has assessed that it is no longer in the children's best interests to be in the care of [the plaintiff and the sixth defendant]. Community Services has revoked [the plaintiff and the sixth defendant's] authorisation to care.

Given that it has assessed that [the plaintiff and the sixth defendant] are not appropriate people to be authorised to care for the children, Community Services is of the view that it can no longer be said to be in the children's best interests that, as of 9 December 2012, they be placed in parental responsibility of [the plaintiff, the sixth defendant and the plaintiff's partner] as per final orders.”

76. The application contended that “Community Services has assessed it is no longer in the children’s best interests to be in the care of their current carers”. In addition to revoking the plaintiff and her mother’s authorisation to be carers, FaCS also revoked all financial support to the family; this included money specifically allocated for the children’s development, such as speech therapy expenses.

77. On the morning of 6 December Officer 4 from FaCS called the plaintiff and informed her that the Section 90 Application had been filed. I accept that Alice had a conversation with her to the following effect:

“O4: Just letting you know that we are filing the section 90 Application today and there is some sensitive information in there.

AT:   What kind of sensitive information is in there? Are my interview notes in there? I haven’t even seen them I am very upset by this. Those notes were supposed to be private and confidential. I am going to seek legal advice about this.

O4:   Yes. I understand you are upset.”

78. On that same afternoon Officer 4 rang the plaintiff again to tell her that the Section 90 Application had been adjourned to the next day and that the learned Children’s Court Magistrate had requested the plaintiff be present in Court.

79. On 7 December 2012 Alice attended the Children’s Court. The Magistrate ordered: that the plaintiff be joined to the proceedings and provided with copies of the material relied upon by FaCS in support of the Section 90 Application; that an interim order by FaCS to deny Parental Responsibility to the plaintiff and her mother, due to take effect on 9 December 2012 was rejected; that the plaintiff could return to her home and live with the children on 9 December; and that the Section 90 Application was otherwise adjourned to 13 December 2012. On 13 December the matter was adjourned until 29 January 2013.

80. At the hearing of 29 January 2013, His Honour Magistrate Hogg granted leave to the Director-General to apply to vary the Orders made on 9 December 2011. He so ordered on the basis that the plaintiff and her mother’s non-disclosure in relation to the events some years prior, and revealed in the interview of 14 August, constituted a significant change in relevant circumstances since the orders were made.

81. On that same day a Section 128 Certificate Magistrate Hogg issued an Evidence Act 1995, s 128 Certificate in relation to evidence given by the plaintiff in the Children’s Court proceedings.

82. Subsequent to those orders and at the request of FaCS, the plaintiff attended a psychiatric and risk assessment conducted for the Section 90 Application. The assessment which was available on 15 March 2013 found that Alice was “a low risk to sexually offend. There is no category of no risk”.

The Police Become Involved

83. On 1 May 2013 the Director-General indicated to the plaintiff’s lawyer by email that the Department would: (1) seek directions to file a care plan recommending that the children be placed under the parental responsibility of the Minister until aged 18 and placed in out of home care; (2) would not re-authorise the carers as requested given the above position in relation to the final orders; and (3) that based on the current state of the evidence presented, not support restoration of the children to the care of the parents.

84. On 9 May 2013 Alice’s mother informed her that she had received a phone call from Wollongong Police and that they wished to discuss the allegations made by Jonathan. The following day, Alice’s lawyers forwarded a letter to Wollongong Police informing them that neither the plaintiff nor her mother would participate in a record of interview in relation to the matter and that if any member of the NSW Police wished to communicate with either the plaintiff or her mother in respect of the matter, that they were to send correspondence via the family’s legal representatives. The plaintiff’s lawyers did not receive any further communication from NSW Police in relation to the matter following that letter.

85. On 26 June 2013, Legal Officer 1, acting as solicitor for the Director-General in the Children’s Court proceedings, forwarded a letter to the plaintiff’s solicitor. It stated that he had received a Chapter 16A Request under the Care Act from the NSW Police. Care Act, Chapter 16A, sections 245 A to I authorises New South Wales government agencies to share information, where those agencies have responsibilities relating to the safety, welfare and well being of young people. The Chapter 16A Request continued:

“for the purpose of using that material as part of an investigation concerning allegations made by the father of the paternal aunt. The Director-General has formed a preliminary view that the Section 128 Certificate granted by the Court in respect of the paternal aunt’s evidence was broad and would possibly prevent that material from being utilised as part of any criminal investigation. The writer is nonetheless instructed to seek to raise this issue with the Court (and preferably before Magistrate Hogg who granted the Certificate) as a matter of courtesy and guidance.”

86. On 16 July Alice’s lawyers sent an email to Legal Officer 1 informing him that she would oppose the production of any records by the Director-General to NSW Police pursuant to the Chapter 16A Request. The point seems to have been well taken. On that same day Legal Officer 1 responded to the plaintiff’s lawyer by email to tell them that the Chapter 16A Request had been withdrawn by NSW Police. Although the Court does not now have to decide the question, which was not fully argued before me, Care Act, s 16A seems to be wholly concerned with the exchange of information between government agencies for the protection and welfare of children. No part of its purpose is to facilitate criminal investigations.

87. The following day on 17 July 2013, Legal Officer 1 wrote again to the plaintiff’s solicitor, informing her that he had been “instructed to seek clarification from the Court in respect to the breadth of the Certificate in the event further investigations were to be conducted by Police”. About two hours later, Legal Officer 1 sent a follow up email stating:

“I have now received updating information from my client that the material will be sent to the Police notwithstanding the withdrawal of the Chapter 16A Request by the Police. The Director General has received updating advice that Community Services appears to have an obligation to provide the information to Police separate to the Chapter 16A request and that a failure to provide material to Police may constitute a breach of s 316 of the Crimes Act (NSW).”

88. The plaintiff’s lawyer responded to Legal Officer 1 that same day by email requesting: (1) that the Director-General identify with precision the documentation intended to be forwarded to NSW Police, bearing in mind the reasonable excuse provisions of s 316; and (2) an undertaking in writing from the Director-General that he would not provide such information to NSW Police without first providing the plaintiff with seven days’ notice in writing of that intention.

89. The letter also noted that the information in question had been provided to the Department in the strictest of confidence and in circumstances where the Department had required the plaintiff to be fully frank. It concludes that if the undertaking was not provided by 10am on 18 July 2013, the plaintiff would seek an injunction restraining the provision of the information and/or a prohibition. Legal Officer 1 responded that at that late stage he would be unable to seek instructions from his client and requested that the injunction application not be lodged until such time as he had an opportunity to speak with them.

90. On 9 August 2013 an email was forwarded by Legal Officer 2, Legal Services at FaCS to the plaintiff’s solicitors. The letter confirmed that the undertaking of seven days’ written notice was duly provided at this time. And it indicated that FaCS proposed to forward to NSW Police the following documents: (1) Community Services notes for the child protection helpline report received on 6 August 2012; (2) Community Services’ interview notes relating to an interview between Caseworker Officer 1 and the plaintiff of 14 August 2012; and (3) Community Services’ interview notes relating to an interview between Caseworker Officer 3 and Jonathan Taylor on 6 September 2012. Item (1) contains information from Dr A based on disclosures I accept that the plaintiff made in confidence to him. Item (2) contains admissions by Alice of sexual contact with Jonathan. Item (3) contain some statements by Jonathan that could be construed as alleging or confirming sexual contact between himself and Alice when he was a minor.

91. The letter continued:

“This information will be brought to the attention of a member of the Police Force for the following reasons. First, there is a reasonable basis for believing that one or more serious indictable offences have been committed. Second, the information might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender. Third, there is no reasonable excuse for failing to bring the information to the attention of a member of the Police Force. In particular, the certificate issued on 29 January 2013 by his Honour Magistrate Hogg pursuant to s 128 of the Evidence Act 1995 is not a reasonable excuse. Fourth, having regard to the above, failure to bring the information to the attention of a member of the Police Force may amount to one or more breaches of s 316 of the Crimes Act 1900.”

92. On 14 August the plaintiff’s solicitor requested that FaCS provide copies of the documents proposed to be forwarded to NSW Police be produced to the plaintiff. The letter also requested: specific reasons for the inapplicability of the “reasonable excuse” clause; justifications for the reasons relied upon for the provision of the material to NSW Police; and reasons why the disclosure would not breach the implied undertakings in relation to the provisions of the Care Act.

93. On 15 August 2013 the Crown Solicitor’s Office informed the solicitors for Alice that FaCS intends “shortly after 30 August” to bring the material in Legal Officer 2’s 9 August letter to the attention of the NSW Police Force.

94. On 29 August 2013 the plaintiff sought orders in the Children’s Court of NSW restraining the Director-General and the Department from releasing any of the information disclosed by Alice Taylor, Jonathan Taylor, or Dr A in relation to these matters. But Magistrate Hogg declined to make such orders, accepting the Director General’s contentions that the Children’s Court does not have jurisdiction to restrain the Director-General from such action.

95. The plaintiff then filed an application by way of Summons and Notice of Motion in the Supreme Court of NSW on 3 September 2013. Bergin CJ in Eq granted interlocutory relief to the plaintiff, ordering that any dissemination of that information be restrained pending the final hearing of this matter.

96. The day before these proceedings came on for final hearing, 5 November 2013, Magistrate Hogg decided in the Children’s Court proceedings that it would be in the best interests of the three children for their safety, welfare and well being to be left in the present situation, cared for by Alice, her mother and Alice’s partner. The learned Magistrate acted on the uncontradicted evidence that if the children were removed from their present placement the result would be likely to be destructive of the children’s best interests. He also found that there was “absolutely no unacceptable risk of harm to these children in their present placement”. The children remain in that placement, with the plaintiff.

Legal Discussion and Conclusions

97. The Court’s findings have reduced the issues in respect of the three items the subject of the plaintiff’s claim for relief: (1) the 6 August 2012 Helpline material; (2) the record of Alice’s interview of 14 August 2012; and (3) Jonathan’s interview notes of 6 September 2012. I see no reason not to admit into evidence such of this material as was heard on the voir dire only, at the trial.

98. On the basis of the Court’s findings, Alice gave the information in item (2) to officers of the Department in circumstances that the information would be kept confidential. The information was imparted, in my view, in circumstances which, subject to the Director General’s arguments about the Director General’s obligation to report the information to the Police, will import an equitable obligation of confidence: see Commonwealth v John Fairfax & Sons Limited (1981) 147 CLR 39 at [50] per Mason J. Similarly, the information in item (1) was disclosed to Dr A in confidence and equity would restrain its further unauthorised disclosure, notwithstanding Dr A’s transmission of the information to the Department, subject to the Director General’s arguments about its duty to disclose the information to the Police. The case turns in my view on the validity of the defendants’ argument that to avoid a breach of Crimes Act, s 316 and in the absence of reasonable excuse it should refer the information to the Police.

99. That leaves consideration of item (3), Jonathan’s interview of 6 September 2012. In my view there is no basis for that material to be withheld from the Police. It was not imparted in confidence by Alice to officers of the Department. It comes from a third party. Alice cannot maintain an obligation of confidence over it and has no basis in these proceedings for restraining the Department’s use of further disclosure of that material. Although the plaintiff and a number of the defendants traversed a range of statutory provisions in their submissions, the foundation of the relief sought is the equitable obligation of confidence. As no such obligation is demonstrated in the plaintiff’s favour in respect of item (3) I decline to grant relief in respect of item (3).

100. As the plaintiff has established an obligation of confidence in respect of items (1) and (2) subject only to the Director General’s defences, it is convenient now to turn to those defences and then consider the plaintiff’s and the other parties’ arguments in reply.

101. The Director General first argues that the Director General like any other citizen is bound by Crimes Act, s 316. Crimes Act, s 316 provides:

“316   Concealing serious indictable offence

(1)   If a person has committed a serious indictable offence and another person who knows or believes that the offence has been committed and that he or she has information which might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for it fails without reasonable excuse to bring that information to the attention of a member of the Police Force or other appropriate authority, that other person is liable to imprisonment for 2 years.

(2)   A person who solicits, accepts or agrees to accept any benefit for himself or herself or any other person in consideration for doing anything that would be an offence under subsection (1) is liable to imprisonment for 5 years.

(3)   It is not an offence against subsection (2) merely to solicit, accept or agree to accept the making good of loss or injury caused by an offence or the making of reasonable compensation for that loss or injury.

(4)   A prosecution for an offence against subsection (1) is not to be commenced against a person without the approval of the Attorney General if the knowledge or belief that an offence has been committed was formed or the information referred to in the subsection was obtained by the person in the course of practising or following a profession, calling or vocation prescribed by the regulations for the purposes of this subsection.

(5)   The regulations may prescribe a profession, calling or vocation as referred to in subsection (4).”

102. The Director General’s construction of the provision is persuasive that it imposes a statutory obligation on every citizen to report serious criminal offences to the Police if the person “knows or believes an offence has been committed or the person has information that might be of material assistance in securing the apprehension, prosecution or conviction of an offender”. The maximum penalty is two years imprisonment for failure to comply with this obligation. The provision is broadly expressed, a feature of the provision which has attracted both academic and judicial criticism over the years.

103. The Crimes Act defines “serious indictable offence” as one carrying a maximum penalty of five years imprisonment or more: Crimes Act, s 4. Were Alice to be charged and convicted of an act of sexual intercourse with a child under the age of 14 she would be potentially liable to penalties in excess of five years imprisonment: Crimes Act, ss 61 and 66C.

104. Neither the Crimes Act nor any relevant legislation to which the Court’s attention was directed governing the functions of the Director General would exclude the Director General from the definition “person” under Crimes Act, s 316. But the Director General is not merely concerned with the Director General’s own responsibility; but rather that of Departmental officers who would each undoubtedly be a “person” within the provision.

105. In my view the information within the Director General’s possession about Alice in items (1), (2) and (3) is information which comes within both limbs of Crimes Act, s 316(1). I accept that the Director General “knows or believes that an offence has been committed “on the basis of this material and I accept that the Director General “has information which might be of material assistance in securing the apprehension of the offender or the prosecution or the conviction of the offender”. An admission by Alice herself of involvement in conduct that may qualify as an offence under Crimes Act, ss 61 or 61C is information of that character.

106. In my view the correctness of the position the Director General takes in these proceedings is established by consideration of the High Court’s decision in A v Hayden (No. 2) (1984) 156 CLR 532; [1984] HCA 67 (“Hayden”). The plaintiffs in Hayden’s case had been participants in a security training exercise arranged by the Australian Secret Intelligence Services (ASIS) which had resulted in acts occurring on private property which may have been offences against the criminal law of Victoria. The Victorian State Government asked the Commonwealth to disclose to the State Commissioner of Police the identity of the participants in the exercise, so that the State Commissioner of Police might investigate the alleged crimes. The plaintiffs, who had been involved in the exercise sought to restrain the Commonwealth from doing so on the basis that their contracts of employment with the Commonwealth stipulated that the identity of each of them would be kept confidential during their training. The High Court refused to grant injunctions saying that no enforceable duty was owed by the Commonwealth to the plaintiffs as to their identities or the details of their training work for ASIS and that although disclosure would breach a confidentiality term in their respective contracts of employment with the Commonwealth, that term was unenforceable. Mason J said at 556:

“It is obvious that the public interest in the enforcement of the criminal law as an element in the administration of justice would be seriously impaired if the citizen were at liberty to assume in return for a benefit an obligation not to disclose information concerning the commission of a criminal offence. The enforcement of the criminal law cannot be allowed to hinge on the willingness of the citizen to make a profit out of his silence, whether the contract be made before or after the commission of the offence. The existence of s 326 of the Crimes Act does not supply a reason for confining the public interest in the enforcement of the criminal law to the extent of disclosure of serious indictable offences. ”

107. His Honour continued at 557:

“Take a contract which contains a minor or subsidiary provision which, though not directed to non-disclosure of criminal offences, imposes an obligation of confidentiality in sweeping terms. If those terms are not susceptible of being read down, the court will refuse to lend its aid to the enforcement of the provision if enforcement would result in the non-disclosure of a criminal offence adversely affecting the administration of justice. In such a case the contract is not void; nor is it unenforceable in the sense in which that term is customarily used in the law of contracts. The case is one in which the court refuses a remedy on the ground of public policy”

108. But Mason J made clear that the principles he was enunciating applied beyond confidentiality clauses in contracts and applied to the general equitable obligation of confidentiality (at 561) as follows:

“What I have said applies with equal force to any implied or equitable obligation of confidentiality which may have arisen on the part of the Commonwealth in relation to the plaintiffs, though I have difficulty in understanding how such an obligation could arise in those cases in which the Commonwealth gave an express promise not to disclose.”

109. Statements of other judges in the majority were to similar effect. Wilson J and Dawson J stated the question as “whether the public interest in the administration of justice precludes the Court in the exercise of its equitable jurisdiction from restraining that disclosure “of confidential information” at 573. In that case the public interest in the prosecution for wilful damage to property was sufficient for an injunction not to be granted: Wilson J and Dawson J at 574.

110. Finally, Deane J (at 598) cited the principle precluding enforcement of confidences does not involve any further weighing process once a threat to the administration of justice is in issue:

“Once it appears, however, that enforcement or insistence upon observance of such a promise would obstruct the due administration of the criminal law, the principle which precludes enforcement by the courts is operative without any further weighing process being necessary or other considerations of public interest being relevant. Indeed, the position of the ordinary individual under the law would be such as to make non-disclosure the only safe course if he were unable to ascertain whether he was under an enforceable obligation to observe a promise to maintain confidentiality unless and until it was known whether it would ultimately be held that other considerations, such as matters of national security of which he might well be completely unaware, outweighed the obstruction of the due administration of the criminal law which enforcement or observance of the promise would involve. While one would expect the considerations of public interest upon which the plaintiffs rely to weigh heavily with the defendants on the question whether the identity of all or any of the plaintiffs should be disclosed by the Commonwealth to the Commissioner of Police, they are simply not in point in so far as the five actions in this court are concerned.”

111. In my view were the Court to grant an injunction in this case it would have the tendency to obstruct the administration of criminal justice in the sense described in Hayden. And if an injunction is not granted the Director General will then be free to take such action as the Director General decides in order to avoid committing an offence under Crimes Act, s 316 with respect to the three items in question.

112. The submissions put against this analysis, though carefully expounded by Mr Anderson, Ms Leis and Ms Francois all suffer in my view from some common deficiencies which may be briefly mentioned. It was put that the Court could grant an injunction to provide a “reasonable excuse” to the Director General from supplying the material to the Police. But the Court cannot grant an injunction just to provide a “reasonable excuse” other than on a principled basis. The relevant principle is Hayden’s case which in my view compels the conclusion that an injunction should not be granted.

113. In a variety of ways the plaintiff submitted that what the Director General seeks to disclose to the Police either could not or is unlikely to be admitted at any criminal trial against Alice. The plaintiff’s submissions pointed to the exclusions and the balancing exercise that would be required under Evidence Act, ss 126B, 126F and 138. But all of these provisions operate at a criminal trial. The possibility that such evidentiary mechanisms might be deployed in a criminal trial does not meet the defendant’s argument that for the Court to grant an injunction would be to obstruct the proper administration of justice. And it cannot be part of the concept of “reasonable excuse” for a person in possession of information indicating the commission of a serious offence to second guess what would happen at a later criminal trial.

114. Nor is it an answer to the first defendant’s case to say that a criminal trial against Alice is unlikely. Whilst the Court finds her in this case to be a generally reliable witness, someone clearly devoted to the care of these three children and a person of obvious sincerity, it is not for this Court nor for the Director General to decide on behalf of prosecuting authorities whether a trial is likely based upon this information.

115. The plaintiff also submitted that in respect of item (1), the contents of the Helpline report, that Care Act, s 29 would prevent disclosure to the Police. But in my view a proper reading of Care Act, s 29(4) shows that provided the notifier is not identified to the Police disclosure is possible.

116. The plaintiff also suggested that the s 128 Certificate that Magistrate Hogg issued was not an obstacle to disclosure. But that also seems to me for a matter for later trial, not for present consideration.

117. The plaintiff also argued that the implied undertaking attaching to documents obtained by opposing parties to proceedings by way of discovery or some other compulsory process would prevent disclosure here: Herne v Street [2008] HCA 36 at [96]. But the difficulty with that argument in the present case is that no Children’s Court or other process required Alice to undertake the interview on 14 August or to make her earlier disclosures to Dr A, which arose out of her treatment.

Conclusions and Orders

118. For these reasons in my view the Court should not make permanent the injunction the plaintiff seeks. But the interlocutory injunction will continue until the proceedings are finalised and the plaintiff has an opportunity to exercise her rights of appeal. The appropriate order of the Court would ordinarily be that the proceedings should be dismissed. But these reasons are being published in unredacted form in closed court. The parties should endeavour to agree upon pseudonyms that will protect the interests of all parties so this judgment may be published in some form. There may yet be arguments about costs. If this is a representative action there may indeed be no order as costs.

119. The Court orders and directs:

1. The parties to bring in short minutes of order to give effect to these reasons.

2. I adjourn the proceedings for directions to 9.30am on 21 August 2014.

3. Continue the existing injunctions until further order.

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Decision last updated: 20 March 2015