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

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: NU v NSW Secretary of Family and Community Services [2017] NSWCA 221 Hearing dates: 27 July 2017 Decision date: 04 September 2017 Before: Beazley P at [1]; McColl JA at [85]; Schmidt J at [86] Decision: Summons dismissed with costs. Catchwords: FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW) – where allegation that father had sexually abused daughter – appropriate test to be applied in cases involving custody or access to a child – whether inability of court to make positive finding of abuse determinative of the ultimate question of whether unacceptable risk of harm to child – M v M (1988) 166 CLR 69; [1988] HCA 68

EVIDENCE – standard of proof – proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW) – where allegation that father had sexually abused daughter – application of Evidence Act 1995 (NSW), s 140 – application of Briginshaw standard

ADMINISTRATIVE LAW – judicial review – denial of procedural fairness – rule in Browne v Dunn (1894) 6 R 67 – significance of witness being on notice of allegation – whether absence of cross-examination on particulars of allegation precluded finding of unacceptable risk of harm to the child Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 8, 9, 60, 71, 72, 78, 79, 80, 83, 91, 93, 96 Evidence Act 1995 (NSW), s 140 Cases Cited: Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1 Bradley v Matloob [2015] NSWCA 239 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Browne v Dunn (1893) 6 R 67 Director General of Community Services; Re Sophie [2008] NSWCA 250 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 M v M (1988) 166 CLR 69; [1988] HCA 68 Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234 R v Prasad (1979) 23 SASR 161 RCR Tomlinson Ltd v Russell [2015] WASCA 154 Re Felicity; FM v Secretary of Department of Family and Community Services (No 3) [2014] NSWCA 226 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 SAMM Property Holdings Pty Ltd v Shaye Properties Pty Ltd [2017] NSWCA 132 The Secretary, Department of Family and Community Services and the Harper Children [2016] NSWChC 3 V V v District Court of New South Wales [2013] NSWCA 469 West v Mead [2003] NSWSC 161 Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 Category: Principal judgment Parties: NU (Applicant) NSW Secretary of Family and Community Services (First Respondent) Independent Legal Representative for the Child (Second Respondent) KU (Third Respondent) District Court of New South Wales (Fourth Respondent) Representation: Counsel: I Coleman SC; L Clarke (Applicant) G Mahony (First Respondent) K Reynolds (Second Respondent) G Hill (Third Respondent)