DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & VIDUKA

The case of *Department of Family and Community Services v Viduka* concerned an appeal to the Supreme Court of New South Wales, Court of Appeal, regarding the interpretation and application of the *Children and Young Persons (Care and Protection) Act 1998* (NSW). The dispute centred on the Department's application for an order for the long-term care and protection of a child, and the subsequent decision of the primary judge.

The Court of Appeal was required to determine whether the primary judge had erred in finding that the Department had failed to establish that the child was in need of care and protection under the Act. Specifically, the appeal raised questions about the standard of proof required for such applications and the proper assessment of evidence presented by the Department concerning the child's welfare and the parents' capacity to care for the child.

Watts J, delivering the judgment of the Court, analysed the relevant provisions of the *Children and Young Persons (Care and Protection) Act 1998* and relevant case law. The Court emphasised that the paramount consideration in all proceedings under the Act is the safety, welfare, and well-being of the child. It was held that the primary judge had misapplied the statutory test by placing an undue burden of proof on the Department and by failing to give sufficient weight to the evidence presented regarding the risks to the child. The Court found that the evidence, when properly assessed, did establish that the child was in need of care and protection.

Consequently, the Court of Appeal upheld the appeal, set aside the orders of the primary judge, and remitted the matter back to the Children's Court for redetermination of the orders for the care and protection of the child.