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

[2013] NSWSC 1319

Supreme Court

New South Wales

Medium Neutral Citation:	Re David, Alan and Mary and the Director General, Family and Community Services & Ors [2013] NSWSC 1319
Hearing dates:	3 September 2013
Decision date:	03 September 2013
Jurisdiction:	Equity Division
Before:	Bergin CJ in Eq
Decision:	Interlocutory injunction granted
Catchwords:	[CHILDREN] - where parental responsibility order made - where application pending to rescind or vary that order [CONFIDENTIAL INFORMATION] - where claim that person with parental responsibility induced to make disclosure of allegedly criminal conduct - where promise of confidentiality - where no notice of proposed use in court proceedings - where obligation to refer information as disclosed to Police [INJUNCTIONS] - where a serious issue to be tried in respect of circumstances where disclosure made - whether interlocutory injunction to be granted
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 Crimes Act 1900 Crimes Regulation 2010 Evidence Act 1995
Cases Cited:	Hearne v Street [2008] HCA 36; (2008) 235 CLR 125
Category:	Interlocutory applications
Parties:	Aunt (Plaintiff) Director General, Department of Family and Community Services (First Defendant) Mother (Second Defendant) Father (Third Defendant) Grandmother (Sixth Defendant)
Representation:	Counsel: MW Anderson (Plaintiff) KJ Edwards (First Defendant) SM Leis (Third Defendant) A Hall (Independent Representative for children) Solicitors: Pearson Family Lawyers (Plaintiff) IV Knight, Crown Solicitors (First Defendant)
File Number(s):	2013/267442

Judgment - EX TEMPORE

1. This is an urgent application brought by the plaintiff by Summons and Notice of Motion filed in Court today. The plaintiff seeks to proceed on an interlocutory basis.

1. The matter is complicated. The plaintiff is the aunt of and has the parental responsibility for three children who are the biological children of the second defendant and the third defendant. Albeit that the fourth defendant has been named as the "Independent Childrens Lawyer" in the Summons and Notice of Motion, that is a misnomer. However leave has been granted to the children's legal representative to appear and put submissions. The sixth defendant, the grandmother of the children, has parental responsibility with the plaintiff.

1. On 9 December 2011 the first defendant, the Director General, Family and Community Services was granted parental responsibility of the children. The Children's Court also made orders pursuant to ss 79, 81, 82 and 86 of the Children and Young Persons (Care and Protection) Act 1998 (the Act). Those orders included that the Minister would prepare and file a report within nine months of the order detailing: (a) the progress of the children to their long term placement; (b) particulars of the level, frequency and appropriateness of contact between the children and the parents and proposals for ongoing contact; (c) the general developmental and health progress of the children including copies of any relevant medical reports; and (d) the general suitability of care arrangements for the children.

1. All aspects of parental responsibility were allocated to the Minister for a period of twelve months, that is until December 2012. Upon the expiration of that period, aspects of parental responsibility remained with the Minister for a further twelve months in relation to contact. However, at the end of that twelve month period all other aspects of parental responsibility were allocated jointly to the sixth defendant and the plaintiff, for a period of twelve months to December 2013.

1. A further order was made that upon the expiration of the orders to which I have just made reference, parental responsibility for the children was to be allocated jointly to the sixth defendant and the plaintiff until each of the children attain the age of eighteen years, some 14 years hence.

1. Section 82 of the Act provides relevantly:

(3) If, after considering the report, the Children's Court is not satisfied that proper arrangements have been made for the care and protection of the child or young person concerned, the Court is, within 30 days of receiving the report, to notify each party to the relevant proceedings inviting the party to make an application under section 90 in relation to the order. Any such application must be made within 30 days of the party being notified by the Court.

1. Section 90 of that Act provides relevantly as follows:

(1) An application for the rescission or variation of a care order may be made with the leave of the Children's Court.

...

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

1. In support of the present application the plaintiff relied upon her affidavit sworn on 3 September 2013. Within that affidavit is a history of the care proceedings and some background to the plaintiff's childhood and familial relationships.

1. It appears that tensions arose in the early part of 2012 when the third defendant indicated to the sixth defendant that if he were not permitted to see the children more often he would make reports to the Department about the family.

1. Part of the plaintiff's background includes therapy with a psychiatrist. That history dates back nearly twenty years. She has suffered some depression and anxiety and it was for those conditions that she consulted the psychiatrist between 1994 to 1999 and then again in 2004 and between 2010 and August or September 2012. The plaintiff has had a period of relocation overseas and presently holds responsible employment.

1. It is not clear what precipitated a call to the Department Help Line or call centre in July or August 2012, but it is apparent that the third defendant made a complaint to the Department that the plaintiff had sexually abused him when he was around twelve or fourteen years of age and the plaintiff was about twenty years of age.

1. It was in August 2012 that an officer of the Department telephoned the plaintiff and informed her that there had been a telephone call to the Department in which "serious allegations have been made concerning your past". The officer said "[w]e 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."

1. The plaintiff's unchallenged evidence on this application is that she was shaken by the call and wanted to confirm that there would only be two people (herself and the officer) present at the meeting and that it was to be confidential. She rang the officer back over the next few days but the officer did not return her call.

1. On 14 August 2012 the plaintiff attended the office of the Department with her mother, her sister and her partner. She met with the officer and could see that there was another person present in the background. The officer then advised the plaintiff that this person was going to be "your case manager in the future and it is important that she be present." The plaintiff said to the officer that she did not know that other person and asked if she could have her partner come into the interview. The plaintiff was advised, "No this is not how things are done. The information will be confidential." The plaintiff was not permitted to take her partner into the meeting.

1. It is apparent from the plaintiff's evidence that the interview continued for about two hours and she was asked a series of questions which she answered. She said she became extremely distressed during the interview and found it difficult to answer some of the questions. The plaintiff was not advised that she did not have to answer the questions. That is not in issue on this application. Nor is there any issue on this application that the plaintiff was not informed that the information that she provided would be used in evidence or could be used against her in a court of law.

1. The other officer of the Department who was present took notes during the interview. The plaintiff was not shown the notes of the interview on that occasion. The plaintiff subsequently asked for a copy of the notes via e-mail and at another meeting but those requests were refused. However, the notes were deployed in Court. As a result of the information provided by the plaintiff the Department made application under s 90 of the 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 for the leave sought under s 90(2) of the Act. The applicant in the Children's Court is an acting manager casework officer with the Department.

1. The leave application was filed in the Children's Court on 5 December 2012 and included the following:

In accordance with section 90(2), the significant changes in relevant circumstances since the order(s) was/were made or last varied are 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.

1. A further complexity to the proceedings is that on 29 January 2013 the learned magistrate in the s 90 proceedings granted a certificate under s 128 of the Evidence Act 1995. It is not clear what the circumstances were at the time of the grant of that certificate but it is in the following terms:

This Court certifies under section 128 of the Evidence Act 1995 of New South Wales that any evidence given in the past, and any further evidence given in these proceedings in relation to or touching upon any alleged sexual impropriety by [the plaintiff] upon or with [the third defendant], is evidence to which section 128(7) of that Act applies.

1. After that Certificate was granted, the plaintiff swore an affidavit dated 13 February 2013 in which it is apparent various disclosures were made in respect of the conduct the subject of the complaint made to the Department by the third defendant.

1. The Children's Court proceedings under s 90 have been case managed to the point where they are ready for hearing. I have been informed from the Bar Table that they are listed for five days at the beginning of October 2013. It was in May 2013 that the sixth defendant received a telephone call from the Police. She was informed that the Police wanted to discuss some complaints that had been made by the third defendant. The solicitors for the plaintiff wrote to the Police and nothing further has been heard by the sixth defendant.

1. On 26 June 2013 a solicitor for the Director General in the Children's Court proceedings forwarded a copy of an e-mail dated that day to the solicitors for the plaintiff in respect of a request made by the Police to the Department under Chapter 16A of the Act. I understand that the request that was made was under s 245D of the Act. It is apparent that there may have been some misapprehension of the ambit of the s 128 Certificate that had been granted by the Magistrate in the s 90 proceedings. The request that was made by the Police was not complied with and I gather that an explanation was given to the Police based on that Certificate. Ms KJ Edwards, of counsel, who appears for the Director General today, submitted that this explanation may have been based on a misunderstanding of the effect of the Certificate. In any event the consequence of the communication with the Police resulted in the Police withdrawing their request.

1. There is to be expert evidence in the Children's Court proceedings. That expert has been informed of the history including the complaints against the plaintiff and has formed a view supportive of the plaintiff retaining parental responsibility for the children.

1. It was on 9 August 2013 that the Department wrote to the plaintiff's solicitors advising that, within seven days of the letter, the Director General proposed to bring to the attention of the Police Force the information contained in the draft letter attached to that letter. The plaintiff's solicitors were asked to give the Department 48 hours' notice of any application to this Court to restrain or prevent the bringing of the information to the attention of the Police Force. The draft letter, which is addressed to the Commander, City Central Local Area Command, Sydney, advises that the letter relates to serious indictable offences which officers of the Department have reason to believe were committed by the plaintiff. It appears that the conduct, the subject of the letter relates to the complaint by the third defendant which apparently occurred in about 1990.

1. The documents that the Department intends to forward to the Police include the items in the Notice of Motion the subject of the application today, two of which the plaintiff has not seen. The other item is the notes of the interview with the plaintiff.

1. There is one aspect of the plaintiff's evidence that I should refer to in respect of the interview notes. It is at paragraph 57 of her affidavit and, as I say, it is unchallenged. That evidence is that the plaintiff does not adopt "as correct" the notes of the interview. It includes the claim that the notes "are missing context and are not an accurate account of what I said or what I was asked. I can provide examples if required."

1. It is also apparent that the psychiatrist contacted the Department regarding the plaintiff. It is not clear to me what the psychiatrist has reported upon to the Department. Certainly the plaintiff has indicated in her affidavit that she consulted with the psychiatrist and made disclosures to him in the circumstances of that therapeutic relationship which, as I say, lasted some years. There is no evidence of the content of the communication between the psychiatrist and the Department on this application.

1. Ms SM Leis, of counsel, for the third defendant, read part of the affidavit of the third defendant sworn on 27 August 2013 without objection. That affidavit includes the statement that he is the father of the children the subject of the application before the Children's Court. His evidence is that he has spoken to the Police on more than one occasion about the "incidents" and that he has "told the police that I am not keen for that matter to proceed further." He claimed that he did not see how Police action about it was going to benefit anyone in terms of the Court making a determination as to what was in the best interests of his children (par 58).

1. The Summons that was filed in Court today seeks an order restraining the Director General of the Department, its servants and agents from releasing to any party, person or entity, including but not limited to any member of the Police Force, the documents that are the subject of the Notice of Motion. The Children's Court declined a similar application on the basis of a lack of jurisdiction. The application in the Notice of Motion that has been moved upon today is by way of an interim restraint subject to further evidence and certain aspects of the evidence being gathered relating to the real circumstances of the communication between departmental officers and the plaintiff. I intend to deal with the application as an interlocutory application, notwithstanding that the order in the Summons reflects much of what is in the Notice of Motion.

1. The plaintiff submitted that the information provided to the Department was on the basis that it would remain confidential and, as I understand the plaintiff's counsel, Mr MW Anderson's submissions, it was provided on the basis that the plaintiff thought it was under compulsion.

1. The plaintiff relied upon the decision in Hearne v Street [2008] HCA 36; (2008) 235 CLR 125. In that case Hayne, Heydon and Crennan JJ defined the "implied undertaking" (not to use material received in the litigious process produced under compulsion for any purpose other than for which it was given) as "an obligation of law arising from circumstances in which the material was generated": at 157 [102]. There was no issue before the High Court in relation to the possible exception to the rule in relation to disclosure of criminal conduct: at 151 [86]. That is the issue in this case.

1. At the core of the submissions on this application is s 316 of the Crimes Act 1900 which relevantly provides as follows:

(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.

...

(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).

1. Clause 4(e) of the Crimes Regulation 2010 prescribes the professions referred to in s 316(5) of the Act.

1. There is no evidence as to why it has taken twelve months for the Director General to decide to refer this information to the Police. Ms Edwards rightly focuses upon the steps that were taken under section 90 of the Act, the process of the filing of the report with the Children's Court under s 82 of the Act and the preparation for the proceedings to rescind or vary the orders which are the subject of the hearing in just a few weeks time. As I understand her submissions, I should infer that what the Department was doing was focussing on the paramount interests of the children and, perhaps, there was an oversight in the Department in not paying attention to s 316 of the Crimes Act.

1. Submissions have been made by various parties today about public policy. For instance, Mr Anderson contrasted what he described as the public policy of the environment of the care of children where it is expected that full disclosure should be made, to the environment in which information relating to serious criminal conduct should be passed on to the Police Force. I must say I do not see any tension between those two environments. If parties come into possession of information about serious indictable offences, or serious offences being committed, their obligation is obvious: they pass it on to the Police.

1. One of the submissions made by Ms Hall, on behalf of the children, was in a similar vein. It was submitted that the cornerstone of the system of care of children is that people should be able to participate in the process with candour, and that there should be an environment in which candid disclosure and cooperation should be fostered so that people should not be fearful of having the Director General refer matters to the Police. It was submitted that otherwise parties would be concerned about making full disclosure if such resulted in referral to the Police. As I said a little earlier, I do not see any tension in this. The care of children is the paramount obligation of the Department in its particular role. If there is a disclosure in respect of which there is a belief that offences of a serious nature have been committed, the obligation is to refer it to the Police and it is usual that this should occur promptly.

1. The fact that people may be concerned about making disclosures because of the prospect of having them referred to the Police will not impact on those people who have nothing to fear and are appropriately given the task of looking after children. It is not possible for the Police to do their work effectively unless there is co-operation from the community and, in particular, the Department, that will receive information of this kind from time to time. Some of the information may ultimately prove to be baseless, but, when presented, may cause the officers of the Department to have a belief that there is substance to it. It is not for the members of Department to decide that criminal conduct has been committed, but rather to form a "belief" about it. It is a matter for the Police to investigate it and, if thought appropriate, to prosecute the party responsible, and for a jury to decide whether it has occurred.

1. The criminal justice system has many protections for the accused person including protections in the investigative phase. The Crimes Act and the Evidence Act also have appropriate protections for those who have serious allegations made against them. I see no difficulty in the Director General's desire to report the matter to the Police. However, there are some complexities to this matter on an interim basis that cause me some deep concern. One is that the information was clearly gathered in anticipation of litigation and it was clearly gathered at a time when the process of monitoring by the Children's Court was underway. Ms Leis has described the process under the Act, in particular s 82, as a monitoring process by the Court. It seems to me that when a report is ordered under s 82 of the Act, the Children's Court has more work to do. It is to review the report when it comes in and to make decisions about what should occur, if anything, as a result of the content of that report.

1. The other aspect to this matter which provides a basis for concern is the granting of the s 128 certificate in January 2013 pursuant to which the plaintiff took further action in providing information about her past. The breadth of that certificate requires analysis. Ms Edwards in careful and detailed written submissions that were provided today (which are those that were provided to the Children's Court) calls into question the validity of that Certificate. That is a serious issue to be tried. The extent and effect of that Certificate on any of the matters that the Director General intends to refer to the Police also need to be analysed. Ms Edwards submits that the information that was provided by the plaintiff to the officers of the Department was independent of any litigious process and would not be affected by the implied undertaking nor would it be affected by the s 128 Certificate.

1. Ms Edwards also submitted that it was unnecessary for the Department to call any evidence today because, even if the plaintiff was induced to provide the information on a misapprehension or misunderstanding of the confidentiality of her disclosures, all this would affect would be the admissibility of the material in any proceedings that might be brought as a result of the communication to the Police Force. That submission might also have force. Prima facie, some of those arguments have force, however, they need to be addressed in the light of all of the evidence to be garnered by the plaintiff and the other parties to these proceedings so that the Court can make an informed decision about whether a final injunction should be made against the Director General disseminating this information to the Police.

1. The plaintiff seeks a restraint on the communication with the Police Force until the conclusion of the proceedings in the Children's Court. It is clear that the third defendant no longer wishes to proceed with any complaint against the plaintiff. It may be that if and when the Director General sends this material to the Police, there may be no further action taken by the Police; but that is a matter for the Police Force. If the interview between the Department and the plaintiff is the subject of the s 128 Certificate, then there may be a very reasonable excuse for the Director General not to refer the material to the Police at this time. Further, if the information was gathered in an environment in which the plaintiff was led to believe that she had no choice but to provide it, in other words, she was compelled to do so, without any warning that she had a right to remain silent, and that she had a right to obtain legal representation; there might be a proper basis for restraining the dissemination of the material as obtained. At this stage the position is unclear.

1. I am satisfied that I should restrain the dissemination of the information for a period, whilst further evidence is filed in relation to the circumstances of the interview between the plaintiff and the Department. The Police are already in receipt of some information, it seems, from the complainant. I am satisfied that for a short period during which time the evidence will be prepared, a restraint will not impact adversely on the circumstances of the arrangements for the children, particularly having regard to the expert evidence in relation to those arrangements. Accordingly, I will make an interim order that the communication of the information referred to in paragraphs 9.1 to 9.3 of the Notice of Motion not occur.

1. I make the following orders:

1. Upon the plaintiff by her counsel giving the usual undertaking as to damages up to 21 October 2013, the Director General, Family and Community Services, its servants or agents are restrained from releasing to the New South Wales Police Force the documents referred to in paragraphs 9.1, 9.2 and 9.3 of the Notice of Motion.

2. I order that the plaintiff file and serve any further evidence in relation to the final hearing of this matter by no later than 23 September 2013.

3. I order that the first defendant file and serve any evidence in reply by 30 September 2013.

4. I list the matter for final hearing on 17 October 2013.

5. Costs are reserved.

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Decision last updated: 11 September 2013