NU v NSW Secretary of Family and Community Services [2017] NSWCA 221

NU v NSW Secretary of Family and Community Services [2017] NSWCA 221

The summons was dismissed because NU had full notice of J's allegations and that those allegations were contested, including through the JIRT interview and J's cross-examination in the criminal proceedings, and he was cross-examined in the District Court about whether the allegations were true. In those circumstances, the absence of cross-examination on every particular of the allegations did not breach Browne v Dunn or procedural fairness. The primary judge applied the correct test of unacceptable risk under M v M, was not required to make a positive finding that abuse occurred, and gave adequate reasons for finding a likelihood of earlier abuse and an unacceptable risk of harm to K.

Jurisdiction
Australia
Judgment Date
04 September 2017
Procedural Posture
Judicial Review of District Court Appeal Decision in Care Proceedings Under the Children and Young Persons (care and Protection) Act 1998 (nsw) / Summons for Relief Under Supreme Court Act 1970 (nsw), S 69, From District Court Decision Dismissing Appeal From Children's Court Permanent Care Order
Outcome
Summons dismissed with costs.
Legal Topics
['care and Protection Proceedings' 'permanent Care Order' 'unacceptable Risk of Harm to Child' 'allegations of Sexual Abuse' 'standard of Proof' 'briginshaw Standard' 'procedural Fairness' 'rule in Browne V Dunn' 'adequacy of Reasons']
['family Law and Child Welfare' 'evidence' 'administrative Law' 'judicial Review'] ['care and Protection Proceedings' 'permanent Care Order' 'unacceptable Risk of Harm to Child' 'allegations of Sexual Abuse' 'standard of Proof' 'briginshaw Standard' 'procedural Fairness' 'rule in Browne V Dunn' 'adequacy of Reasons']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Judicial Review of District Court Appeal Decision in Care Proceedings Under the Children and Young Persons (care and Protection) Act 1998 (nsw) / Summons for Relief Under Supreme Court Act 1970 (nsw), S 69, From District Court Decision Dismissing Appeal From Children's Court Permanent Care Order

Legal Issues

  1. 1 ['Whether the District Court erred in law on the face of the record or committed jurisdictional error by finding an unacceptable risk of harm to K in the absence of cross-examination of NU on the particulars of his denials of sexual abuse of J.' "Whether the rule in Browne v Dunn or a broader requirement of procedural fairness precluded the District Court from relying on J's allegations where NU denied them and was not cross-examined on every detail." 'Whether the District Court gave adequate reasons for concluding that there was an unacceptable risk of harm to K.' 'Whether s 140 of the Evidence Act 1995 (NSW) applied to care proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW), and whether the Briginshaw standard was applicable.']

Ratio Decidendi

The summons was dismissed because NU had full notice of J's allegations and that those allegations were contested, including through the JIRT interview and J's cross-examination in the criminal proceedings, and he was cross-examined in the District Court about whether the allegations were true. In those circumstances, the absence of cross-examination on every particular of the allegations did not breach Browne v Dunn or procedural fairness. The primary judge applied the correct test of unacceptable risk under M v M, was not required to make a positive finding that abuse occurred, and gave adequate reasons for finding a likelihood of earlier abuse and an unacceptable risk of harm to K.

Court Disposition

Summons dismissed with costs.

Orders

  • ['Summons dismissed with costs.']