Re David, Alan and Mary and the Director General, Family and Community Services & Ors [2013] NSWSC 1319

Re David, Alan and Mary and the Director General, Family and Community Services & Ors [2013] NSWSC 1319

The Court found that there are serious issues to be tried regarding whether the information given by the plaintiff was confidential, whether it was covered by the implied undertaking, and the effect of the s 128 certificate. The balance of convenience favoured granting an interlocutory injunction restraining the Director General from disclosing the specified information to Police until further evidence was provided and the final hearing could take place.

Parties
Plaintiff: Aunt; First Defendant: Director General, Department of Family and Community Services; Second Defendant: Mother; Third Defendant: Father; Sixth Defendant: Grandmother; Children's Legal Representative: Independent Representative for children
Jurisdiction
Australia
Judgment Date
03 September 2013
Procedural Posture
Interlocutory Application / Interlocutory (hearing of Urgent Application for Injunction)
Outcome
Interlocutory injunction granted
Legal Topics
Parental Responsibility Order, Confidentiality of Disclosures, Disclosure to Police, Section 128 Certificates, Interlocutory Injunctions
Children's Law Confidential Information Injunctions Parental Responsibility Order Confidentiality of Disclosures Disclosure to Police Section 128 Certificates Interlocutory Injunctions

Case Brief

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Parties

Aunt

Plaintiff

Director General, Department of Family and Community Services

First Defendant

Mother

Second Defendant

Father

Third Defendant

Grandmother

Sixth Defendant

Independent Representative for children

Children's Legal Representative

Procedural Posture

Interlocutory Application / Interlocutory (hearing of Urgent Application for Injunction)

Legal Issues

  1. 1 Whether an interlocutory injunction should be granted to restrain the Director General from disclosing certain information to the Police pending further evidence
  2. 2 Whether the information obtained during the Department's interview with the plaintiff is subject to an implied undertaking/obligation of confidentiality
  3. 3 What effect (if any) a Section 128 Evidence Act certificate has on the Department's ability to disclose the information to Police

Ratio Decidendi

The Court found that there are serious issues to be tried regarding whether the information given by the plaintiff was confidential, whether it was covered by the implied undertaking, and the effect of the s 128 certificate. The balance of convenience favoured granting an interlocutory injunction restraining the Director General from disclosing the specified information to Police until further evidence was provided and the final hearing could take place.

Court Disposition

Interlocutory injunction granted

Orders

  • Director General, Family and Community Services, its servants or agents restrained from releasing specified documents to NSW Police Force until 21 October 2013, upon the usual undertaking as to damages
  • Plaintiff to file and serve any further evidence by 23 September 2013