“B” (No 2) v The Secretary, Department of Family and Community Services [2018] NSWDC 174

District Court New South Wales

Medium Neutral Citation: "B" (No 2) v The Secretary, Department of Family and Community Services [2018] NSWDC 174 Hearing dates: 28, 29 & 30 May, 1, 4, 5, 6 & 7 June 2018 Date of orders: 29 June 2018 Decision date: 29 June 2018 Jurisdiction: Civil Before: Judge Levy SC Decision: The appeal succeeds. See paragraph [631] for orders Catchwords: CHILD CARE APPEAL – de novo hearing of a care proceedings to determine the appropriate allocation of parental responsibility and ancillary orders – analysis of manner and extent to which FaCS considered and investigated relevant disclosures of historical child sexual abuse in the father's extended family – FaCS report file on those disclosures was "closed at triage" due to "competing priorities" – reconsideration of the issues in light of relevant evidence admitted at the re-hearing but erroneously excluded due to a ruling made at the hearing in the Children's Court Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 Cases Cited: "B" v The Secretary, Department of Family and Community Services [2015] NSWDC 267 Bradshaw v McEwans Pty Ltd (1952, unreported) (1951) 217 ALR 1 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Fox v Percy [2003] HCA 22; 214 CLR 118 Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58 Strinic v Singh [2009] NSWCA 15 Category: Principal judgment Parties: The Secretary, Department of Family & Community Services (FaCS) "B" -The child "C" - Mother of the child (Applicant) "D" - Father of the child Representation: Counsel and Solicitors: Ms G Mahony instructed by Crown Solicitor for NSW (FaCS) Mr M Boys (Solicitor for the applicant mother) Ms A Fawaz (Solicitor for the father) Ms S Ross (Solicitor, Independent Legal Representative of the child) File Number(s): 2017/386548 Publication restriction: Restriction on publication of names and identifying details other than litigation pseudonyms: s 105 of the Children and Young Persons (Care and Protection) Act 1998