Nu v NSW Secretary of Family and Community Services

[2017] NSWCA 221

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

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)

    Solicitors:
NSW Law Society Pro Bono Scheme (Applicant)
Office of the Crown Solicitor (First Respondent)
Legal Aid NSW (Second Respondent)
Elizabeth Fleming & Associates (Third Respondent)
Office of the Crown Solicitor (Fourth Respondent)

File Number(s):

2017/77429

Publication restriction:

Suppression order in respect of identities of the child, the parents and other relevant persons in the proceedings

 Decision under appeal 

Court or tribunal:

District Court

Date of Decision:

12 December 2016

Before:

Maiden DCJ

File Number(s):

2015/333088

Headnote

[This headnote is not to be read as part of the judgment]

The applicant, NU, and the third respondent, KU, are the father and mother respectively of the child K. K was the subject of a permanent care order made in the Children’s Court, pursuant to which K was placed in the care of her maternal grandparents. The Children’s Court proceedings and the intervention of the first respondent, the NSW Secretary of Family and Community Services, arose out of an allegation by J, NU’s child from a previous relationship, of sexual abuse of J by NU. These allegations also gave rise to criminal proceedings against NU, in which NU was acquitted by a jury after the trial judge gave a Prasad direction.

NU and KU brought an appeal in the District Court against the orders of the Children’s Court. On 12 December 2016, the primary judge dismissed the appeal. The primary judge was unable to make a finding as to whether sexual abuse of J by NU over a three year period did occur as detailed by J, but found that abuse was likely to have occurred. Accordingly, his Honour found that there was an unacceptable risk of harm to the child K.

The applicant sought judicial review of the decision of the District Court. His primary contention was that the primary judge erred in law on the face of the record in making a finding of unacceptable risk to the child K in the absence of cross-examination of NU with respect to his denials of sexual abuse of J.

Beazley P (McColl JA and Schmidt J agreeing):

(1)   Unless the Court orders otherwise, the rules of evidence do not apply in proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW), and accordingly s 140 of the Evidence Act 1995 (NSW) does not apply to the assessment of evidence. However, where there is an allegation such as of sexual abuse in circumstances such as arise in this case, it is appropriate and necessary to apply the Briginshaw standard. [50], [54]

Director General of Community Services; Re Sophie [2008] NSWCA 250; M v M (1988) 166 CLR 69; [1988] HCA 68, applied

(2)   In determining the appropriate order to be made in a case involving custody or access to a child, an inability of the court to make a positive finding of abuse is not determinative of the ultimate question whether the child would be exposed to an unacceptable risk of harm if restored to the care of the parent or parents. [55], [83]

M v M (1988) 166 CLR 69; [1988] HCA 68, applied

(3)   There is a clear corollary to the rule in Browne v Dunn (1893) 6 R 67, namely, that if a witness is on notice of the allegation upon which a party intends to rely and is on notice that his or her evidence is contested on that issue, the rule does not mandate that the witness be cross-examined on the matter. [58]

Browne v Dunn (1893) 6 R 67; Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1, applied

(4)   A failure to cross-examine a witness on an issue does not necessarily require the fact finder to accept the witness’ evidence. [59]

Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234; Bradley v Matloob [2015] NSWCA 239, applied; RCR Tomlinson Ltd v Russell [2015] WASCA 154, cited

(5)   NU was clearly on notice that J’s allegations of sexual abuse over a three year period were in issue and of the detail of those allegations. In those circumstances, the failure to cross-examine NU on the particulars of the allegation did not constitute a breach of procedural fairness. [62], [70]-[74]

Judgment

1. BEAZLEY P: On 12 December 2016, Maiden DCJ dismissed an appeal brought by NU and KU, the father and mother respectively of the child K, who was then aged 4 years, from a permanent care order made in the Children’s Court on 17 September 2015. Pursuant to that order, K was placed in the care of her maternal grandparents.

2. NU, by summons filed on 10 March 2017, seeks relief in this Court pursuant to the Supreme Court Act 1970 (NSW), s 69, to have the orders of the District Court set aside and the matter remitted to the District Court to be heard and determined according to law. NU’s application is supported by KU, who is joined as the third respondent to the proceedings. To obtain relief NU must “establish an error of law on the face of the record of the court below, or jurisdictional error”: Re Felicity; FM v Secretary of Department of Family and Community Services (No 3) [2014] NSWCA 226 (at [8]) per Basten JA (Ward and Emmett JJA agreeing).

3. The applicant contended that his Honour erred in law on the face of the record in the following respects:

“1   The learned District Court Judge erred at law on the face of the record in making a finding of unacceptable risk to the child, the subject of the proceedings, against [NU] in the absence of cross examination of [NU] with respect to his denials of sexual abuse of an elder child of [NU], in circumstances where such denials were neither manifestly false or inherently improbable; and

2   The learned District Court Judge erred at law on the face of the record in failing to adequately expose the process of reasoning which led the primary judge to decide that cross examination of [NU] with respect to his denials of sexual abuse of another of his children did not preclude His Honour from finding that [NU] represented an unacceptable risk to the child the subject of the proceedings.

3.   The learned District Court Judge erred at law on the face of the record in making a finding that the defendant in the court below in possession of burden of onus of proof satisfied that required standard.”

4. In his oral argument, the applicant informed the Court that the first and third errors for which he contended raised the same issue.

Background facts

5. As already indicated, NU and his wife KU have a child, K, who is the subject of the care order made in the Children’s Court. They had lived together as a family unit until the Department of Family and Community Services (FACS) became involved in K’s care. NU has a child, J, from a prior relationship with AA, born in 2003. NU and AA also have a son, L, one year older than J. AA has a daughter, D, from a prior relationship, who had been part of NU and AA’s household prior to their separation. NU also had another son who is deceased.

6. After the separation of NU and their mother, J and L continued to have contact with NU, albeit on an intermittent basis. The intermittency of the contact arrangements appeared to relate to NU’s alleged failure, from time to time, to provide child support. The contact was at the home that NU shared with KU and K, usually over a weekend. The last occasion that J, together with her brother L, had contact with NU at his family home was in April 2013, which was the weekend of KU’s birthday. After that weekend, J and L did not have further contact with their father, again, apparently, because of an issue relating to child support.

7. The circumstances in which K came into the care of FACS related to an allegation J made to her mother and her aunt in October 2013 of sexual misconduct by NU towards her, which she said had been occurring for a period of about three years, the last occasion being on the weekend of KU’s birthday in April 2013. J’s complaint was immediately reported to the police and J was interviewed by the Joint Investigation Response Team (the JIRT interview). On 18 October 2013, NU was arrested and charged with two counts of aggravated sexual assault of a victim under his authority. The two counts were particularised as having occurred on the last occasion that J stayed with her father on the weekend in April 2013.

8. NU, who at all times denied both the specific allegations with which he was charged and the allegations of longer term sexual abuse, was acquitted by a jury following the trial judge informing the jury that it was open to it to conclude the evidence was insufficient to justify a conviction without hearing more: R v Prasad (1979) 23 SASR 161 at 163 per King CJ (Prasad direction). The Prasad direction was given when it became apparent from J’s cross-examination that there could not have been a sexual assault on the dates particularised in the indictment.

Proceedings in the Children’s Court

9. Prior to the matter coming before the Children’s Court, two plans for K’s care had been put in place. The first, developed on 9 January 2014, provided that KU was to provide all primary care to K and to supervise contact between K and NU pending further assessment by Community Services. In early June 2014, Departmental caseworkers became aware that NU had been identified on the Community Services system as a “Person Causing Harm” to children. A new plan was implemented whereby KU agreed to leave the family home with K and reside with a maternal aunt and uncle until there was an outcome in the criminal proceedings against NU. In breach of that care plan KU, together with K, returned to the family home. This resulted in K being removed from KU’s care and placed with the maternal aunt and uncle. Subsequently, on 25 September 2014, K was placed in the care of her maternal grandparents, with whom she has continued to reside.

10. The Secretary commenced proceedings in the Children’s Court on 23 July 2014. On 13 January 2015, the Secretary filed an amended Application and Report initiating care proceedings. The “establishment” phase of the proceedings, to which reference is made below, was heard on 15 January 2015 and determined by the magistrate on 12 February 2015. An appeal to the Supreme Court was dismissed by consent. The final hearing in the Children’s Court was heard over three days between 23 July and 9 September 2015. Final orders were made on 17 September 2015. The effect of the orders made on that occasion was that parental responsibility for K was placed with the maternal grandparents until K attained the age of 18.

Legislation

11. The appeal to the District Court was brought pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care and Protection Act). Sections 8 and 9 provide, relevantly:

“8   What are the objects of this Act?

The objects of this Act are to provide:

(a)   that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them …

…

9   Principles for administration of Act

(1)   This Act is to be administered under the principle that, in any action or decision concerning a particular child or young person, the safety, welfare and well-being of the child or young person are paramount.

(2)   Subject to subsection (1), the other principles to be applied in the administration of this Act are as follows:

…

(c)   In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child’s or young person’s development.”

12. Section 60 provides:

“60   Definitions

In this Act:

care application means an application for a care order.

care order means an order under this Chapter for or with respect to the care and protection of a child or young person, and includes a contact order under section 86 but does not include a parent capacity order.

...”

13. Pursuant to s 71, the Children’s Court may make a care order if it is satisfied that a child “is in need of care and protection for any reason” including for any of the reasons specified in s 71(1)(a)-(h). These include, relevantly:

“…

(d)   subject to subsection (2), the child’s or young person’s basic physical, psychological or educational needs are not being met, or are likely not to be met, by his or her parents or primary care-givers,

(e)   the child or young person is suffering or is likely to suffer serious developmental impairment or serious psychological harm as a consequence of the domestic environment in which he or she is living …”

14. Where an application for a care order is made by the Secretary, the Secretary must present a care plan to the Children’s Court before final orders are made: s 78(1). Pursuant to s 80, the Children’s Court must not make a final order for the removal of a child from parental care and protection unless it has considered a care plan presented to it by the Secretary.

15. The Children’s Court may make an order allocating all aspects of parental responsibility, inter alia, to “a suitable person or persons jointly”: s 79(1)(f). The specific aspects of parental responsibility that may be allocated by such an order include the residence of the child: s 79(2).

16. Pursuant to s 83, if the Secretary applies for a care order for the removal of a child, the Secretary must assess whether there is a realistic possibility of the child being restored to parental care, having regard to the circumstances of the child and any evidence that the child’s parents are likely to be able to satisfactorily address any issues that had led to the removal of the child from their care: s 83(1)(a) and (b).

17. If the Secretary assesses that there is a realistic possibility of restoration of the child to the parents, the Secretary is to prepare a permanency plan which involves restoration and submit that to the Children’s Court for its consideration: s 83(2). Similarly, if the Secretary assesses that there is not a realistic possibility of restoration, it must prepare a permanency plan which specifies another suitable long term placement for the child and submit that to the Court for consideration: s 83(3).

18. The Children’s Court is then required to determine whether to accept the Secretary’s assessment of whether or not there is a realistic possibility of restoration: s 83(5). The Children’s Court may decide for itself whether or not there is a realistic possibility of restoration of the child to parental care: s 83(5A).

Principles governing the making of care orders

19. The determination of the question whether a child is in need of care and protection pursuant to s 71 (or s 72) is referred to in the parlance of the Children’s Court as the “establishment phase” of proceedings. The court retains a residual discretion whether to make a care order after a s 71 ground is made out: V V v District Court of New South Wales [2013] NSWCA 469. The terminology used for the consideration required by s 83 as to the realistic possibility of the child being returned to parental care is the “placement phase” of the proceedings. Often, although not necessarily, the establishment phase is heard first and the placement phase heard subsequently, leading to the making of final orders. In this case, in the hearing before the Children’s Court, the establishment and placement phases were heard separately. However, on the appeal to the District Court pursuant to s 91, the provisions of which are next set out, both aspects, that is, the establishment and placement phases, were under consideration.

20. Section 91 provides:

“91   Appeals

(1)   A party to proceedings who is dissatisfied with an order (other than an interim order) of the Children’s Court may, in accordance with the rules of the District Court, appeal to the District Court against the order.

(2)   An appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence on which the order was made, may be given on the appeal.

(3)   Without limiting subsection (2), the District Court may, instead of taking fresh evidence, decide to admit as evidence the transcript of proceedings before the Children’s Court and any exhibit tendered during those proceedings.

(4) In addition to any functions and discretions that the District Court has apart from this section, the District Court has, for the purposes of hearing and disposing of an appeal, all the functions and discretions that the Children’s Court has under this Chapter or Chapter 6.

(5)   Without limiting the generality of subsection (4), the District Court may confirm, vary or set aside the decision of the Children’s Court.

(6)   The decision of the District Court in respect of an appeal is taken to be the decision of the Children’s Court and has effect accordingly.

(7)   Subject to any interlocutory order made by the District Court, an appeal does not affect the operation of the order appealed against or prevent the taking of action to implement that order.

(8) The provisions of Chapter 6 apply to and in respect of the hearing of an appeal under this section in the same way as they apply to and in respect of the hearing of a care application under that Chapter.”

21. The effect of ss 91(4) and 91(8) is to engage, on the hearing of the appeal, the Children’s Court’s processes provided for in Ch 6 of the Care and Protection Act, and, relevantly for the purposes of this matter, s 93, which provides:

“93   General nature of proceedings

(1)   Proceedings before the Children’s Court are not to be conducted in an adversarial manner.

(2)   Proceedings before the Children’s Court are to be conducted with as little formality and legal technicality and form as the circumstances of the case permit.

(3)   The Children’s Court is not bound by the rules of evidence unless, in relation to particular proceedings or particular parts of proceedings before it, the Children’s Court determines that the rules of evidence, or such of those rules as are specified by the Children’s Court, are to apply to those proceedings or parts.

(4)   In any proceedings before the Children’s Court, the standard of proof is proof on the balance of probabilities.

(5)   Without limiting subsection (4), any requirement under this Act that the Children’s Court be satisfied as to a particular matter is a requirement that the Children’s Court be satisfied on the balance of probabilities.”

22. Section 96 provides:

“96   Attendance of child or young person, parents and others

(1)   In proceedings before it with respect to a child or young person, the Children’s Court may, on its own initiative or at the request of any party to the proceedings, require the attendance at the court house where the proceedings are conducted:

(a)   of the child or young person and of any parent of the child or young person, or

(b)   of any other person who has, or has had, care responsibility for the child or young person, or

(c)   if the whereabouts of the child or young person is unknown to the Children’s Court—of any other person the Children’s Court has reasonable cause to believe knows, or has information concerning, the whereabouts of the child or young person.

(2)   If a child or young person does not wish to be present before the Children’s Court during the hearing of any proceedings, the child’s or young person’s wishes are to be taken into account by the Children’s Court.

(2A)   The fact that a child or young person is presumed by section 99C (1) to have the capacity to instruct his or her legal representative does not of itself mean that the child or young person is required to attend the Children’s Court to give those instructions. Such a child or young person is required to attend only if required under this section.

(3)   A child or young person is not required (except as provided by subsection (4)) to give evidence in the Children’s Court.

(4)   Despite subsection (3), the Children’s Court may require a parent of the child or young person who is the subject of the proceedings who is himself or herself a child or young person to give evidence in the Children’s Court.

(5)   A person referred to in subsection (1)(c) may be required to give to the Children’s Court such information that the person has about where the child or young person is or may be located.

(6)   If the Children’s Court decides to require any person to attend a court house under subsection (1) it may issue to the person a notice in accordance with Part 2 requiring the person to attend as directed in the notice (a care proceedings attendance notice).

Note. Section 109B enables the Children’s Court to issue a warrant for the arrest of a person who fails to attend as directed by a care proceedings attendance notice.

(7)   In this section:

parent of a child or young person includes a birth parent, or an adoptive parent, of the child or young person who does not have parental responsibility for the child or young person.”

Primary judge’s reasons

23. The primary judge commenced his consideration of the appeal by recounting the history of the allegations of sexual assaults by J and the outcome of the criminal trial. His Honour identified the critical issue in respect of J’s evidence, which comprised the JIRT interview and her cross-examination in the criminal proceedings, as being her claim that she had been sexually abused for a period of years prior to the weekend in April 2013 which had been the subject of the criminal charges. Having considered that evidence, and having heard the evidence of Mr O’Grady, a child psychologist, who had been provided with the transcript of the JIRT interview and the transcript of the court proceedings, his Honour stated that he agreed with Mr O’Grady’s assessment of J’s evidence that it was “unlikely that [J] has fabricated allegations of sexual abuse against her father”.

24. His Honour next referred to difficulties that J had had at school in about August 2013 which resulted in a Departmental visit. He also referred to J’s evidence that NU had also attempted to assault D, a claim that D denied and which his Honour appears to have accepted to have been a misinterpretation by J of what D had told her.

25. His Honour then turned to a consideration of the evidence in the period prior April 2013, and observed that the court was required:

“… to look at the competing evidence of whether or not there may have been sexual abuse by father on daughter, of a nature best described as being similar to the ‘last weekend of digital penetration of the vagina’.”

26. His Honour further observed that the lack of detail in respect of that evidence affected all the parties to the proceedings. His Honour agreed, as had been submitted by NU and KU, that J’s evidence as to what occurred on the last weekend of contact in April 2013 was unreliable.

27. His Honour also stated that, “as a matter of evidence”, he was unable to find whether the allegations of the sexual conduct over a three year period before the weekend of the charged assaults had occurred. However, his Honour did not accept a submission that J had a view that her father was unreliable and had made promises that would not be kept and that, because of that adverse view, she was confused, to some extent, as to whether she had been sexually abused. His Honour stated that he was unable to make that finding because, from the JIRT interview and J’s cross-examination in the criminal court, J had appeared “balanced, reliable, intelligent” and did not appear to be demonstrating continuing behavioural problems as had been exhibited at school in August 2013.

28. His Honour also observed that NU and KU, having observed the CD’s of J’s JIRT interview and her evidence in the criminal trial, had changed their opinion that J had been coached in respect of the allegations of sexual abuse, but they nonetheless maintained that her evidence was unreliable. His Honour agreed with Mr O’Grady’s assessment of J’s evidence, including Mr O’Grady’s conclusion that J’s language and reactions during the JIRT interview were appropriate and stated:

“… the Court is left in a position that it is unable to make a finding as to whether sexual assaults did occur as detailed by [J]. The Court must find and does find that there was for that period of time, three years up until April of 2013, the likelihood of abuse having occurred.”

29. His Honour considered that KU’s evidence demonstrated her affection for her husband, her intelligence and that, in “having to support her husband” in facing the criminal charges, she was focussed on that when the first and second care plans came into operation.

30. His Honour noted KU’s opinion that the offences with which her husband had been charged could not have occurred. However, his Honour considered that in respect of complaints of earlier sexual assaults continuing over a period of years, KU had not viewed them objectively. His Honour acknowledged the difficult position that KU was in, in effect, being divided as between her support for her husband and her wish to be with him and being separated from him as required by the care plans, so as to have the full time care of K.

31. His Honour observed that in their appeal, KU and NU sought to have K returned to them, but that if the court was not prepared to make that order, they sought that K be returned to KU’s care and that she would undertake to do what the Department required of her. His Honour observed, however, that if the proposed living arrangements involved the family being reunited so that NU, KU and K were living together, there would be a greater risk to K, as she would be with NU full time. In this regard, his Honour considered it relevant that the sexual abuse of J was said to have commenced when J was approximately 6 years of age. At the time of his Honour’s judgment, K was aged 4, but his Honour observed, “one might think [her] position [was] not greatly different to that of a six year old”.

32. His Honour next stated in respect of the first step of the process, that is, the establishment phase, that he had “been unable to find any incident”. His Honour also noted that the Secretary carried the onus of proof on the civil standard, but that the principles stated in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 applied.

33. His Honour observed that J had withdrawn her allegation in respect of the incidents in April 2013, and that her complaints of a period of abuse preceding that had not been investigated. His Honour concluded that:

“Notwithstanding that there was no further investigation, I find that there is compelling evidence from [J] that abuse was likely to have occurred earlier”.

34. His Honour referred to the test as to whether there was “an unacceptable risk of harm” stated in M v M (1988) 166 CLR 69; [1988] HCA 68 and reiterated that he found that there was “an unacceptable risk” based upon the matters he had found.

35. His Honour also considered that KU’s breach of the second care plan “loom[ed] large” and that her evidence was unreliable because of her affection for her husband, such that she was unable to separate possible risk to K from her affection for her husband. Accordingly, his Honour considered that the current care plan and the current orders made by the Children Court should remain in place.

Was NU denied procedural fairness?

NU’s submissions

36. NU, in his oral argument, submitted that he had been denied procedural fairness in that the primary judge had made a finding adverse to him in circumstances where his sworn denials of impropriety were not tested by cross-examination. It was argued that in those circumstances, the primary judge was precluded from making any such finding and thereby had erred in law. As this submission was developed, it was that his Honour had erred in failing to apply the rule in Browne v Dunn (1893) 6 R 67 or that there was some “broader requirement of procedural fairness” that had not been afforded in the circumstances such that absent cross-examination of the father with respect to the critical allegations of abuse, it was not open to make a finding adverse to him.

37. This submission was advanced in full acceptance of the limitations on the principle discussed in SAMM Property Holdings Pty Ltd v Shaye Properties Pty Ltd [2017] NSWCA 132. In particular, NU submitted that it was not sufficient that he merely be cross-examined on his affidavit. Rather, there was also a deal of circumstantial evidence, such as J’s evidence as to the routine in the household of a morning during which the abuse was said to have occurred, about which he should have been cross-examined.

38. NU submitted that had he been cross-examined, the primary judge would have been able to assess his evidence, including his demeanour which, it was submitted, “remains a powerful weapon” in the determination of matters such as was before the primary judge. It was submitted that without that cross-examination, the primary judge was not in a position to properly assess the denials of the alleged perpetrator. This was particularly so in circumstances where there was a question as to J’s reliability as an historian. NU submitted that J’s reliability had been found to be wanting in respect of the occasion of the charged events and a difference in her evidence to that given by her aunt TA and submitted that those matters were significant. However, NU did not challenge the genuineness of J’s beliefs as to what had happened to her.

39. A question of onus also arose. During the course of oral argument, questions were raised by the bench as to why, in his evidence in chief, in circumstances where NU had J’s JIRT interview and the transcript of her cross-examination in the criminal trial, NU could not have given evidence in response to the circumstantial evidence to which he had referred. NU submitted that that proposition had the effect of reversing the onus of proof, which was on the Secretary to establish that an order should be made removing the child from the parent’s care.

40. NU accepted that a finding of a likelihood of abuse having occurred could be made in accordance with the principles stated in M v M and The Secretary, Department of Family and Community Services and the Harper Children [2016] NSWChC 3 on the basis that the primary judge rejected his denials of abuse. He contended however that the primary judge treated the truthfulness or otherwise of his denials as irrelevant. Had there been cross-examination, the primary judge would have been in a position to assess his evidence and thus have some foundation for accepting or rejecting his evidence. The corollary, and this was NU’s essential submission, was that in the absence of cross-examination the primary judge could not reject NU’s denials of sexual impropriety in relation to J.

41. It was part of this submission that his Honour’s reasons were inconsistent to the extent that he was unable to make a finding as to whether sexual assaults occurred as had been “detailed” by J but nonetheless found that there was “a likelihood of abuse having occurred”, in the three years up until the weekend in April 2013, being the occasion of the charged events. NU also pointed to the fact that although the primary judge had made certain adverse credit findings against NU, that was not the basis upon which he found a likelihood of abuse. NU submitted that this underscored the criticality of cross-examination if the primary judge was to reject NU’s denials of the abuse having occurred.

The Secretary’s submission

42. The Secretary submitted that the effect of NU’s submission was to argue that the primary judge was required to determine the contest between the competing versions of the evidence of NU and J. The Secretary submitted that that is not the test, the test being whether there would be an unacceptable risk if K was permitted to return to live with her parents in the family home, and that NU’s approach merely sought to challenge a finding of fact and thus did not give rise to relief under s 69. The Secretary submitted that it was apparent from NU’s submission that he asserted that the primary judge was required to consider only the veracity of his denials in determining whether K should be restored to his and KU’s care.

43. The Secretary also submitted that, in determining what order to make, the primary judge was not limited to considering only those matters relevant to the establishment phase whereby the Children’s Court jurisdiction was engaged. His Honour was entitled, according to the Secretary, to also have regard to the conduct and attitude of the mother in breaching the second care plan, not being truthful about that in interviews with departmental officers, her understandable support of her husband and her wish for the family to be reunited.

44. The submissions of the Independent Legal Representative of the Child were to the same effect as those of the Secretary. The Independent Legal Representative also helpfully referred the Court to the cross-examination of NU and submitted that there had been extensive and sufficient cross-examination of NU such that he was afforded procedural fairness.

Consideration

45. The parties accepted that, in determining whether a child was in need of care and protection, the court was required to determine whether the restoration of the child “would expose the child to an unacceptable risk of sexual abuse”: see M v M at [25]. See also the Harper Children case.

46. M v M concerned the custody of, and access to, a child in respect of whom there was an allegation of sexual abuse by the father, in the context of a dispute under the Family Law Act (Cth) 1975. The paramount question under that Act was what is in the best interests of the child. In that context, the High Court observed, at [20], that the Family Court was not required to resolve the dispute as to whether there had been sexual abuse as a court exercising criminal jurisdiction would be required to do if a person was being tried for a criminal offence. Rather, the Family Court’s concern was to make such order as would “best promote and protect the interests of the child”. In making that determination, great weight was to be given to “the importance of maintaining parental ties”.

47. The High Court, at [24], observed that in determining that question, the Family Court was required to determine “whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk”. The High Court observed that many attempts had been made to define the magnitude of the risk necessary to be found to justify the denial of parental access to a child.

48. Against that background, the Court considered, at [25], that to “achieve a proper balance”, the test was best described as above, namely, whether the grant of custody or access to a parent “would expose the child to an unacceptable risk of sexual abuse”.

49. The standard of proof in respect of civil matters is now governed by the Evidence Act 1995 (NSW), s 140, which provides, relevantly:

“140   Civil proceedings: standard of proof

(1)   In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2)   Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

…

(b)   the nature of the subject-matter of the proceeding, and

(c)   the gravity of the matters alleged.”

50. The parties made no reference to s 140 in their submissions. Whilst proceedings under the Care and Protection Act are civil, the general position is that the rules of evidence do not apply unless the court makes an order that they are to apply to the proceedings or to part thereof: s 93(3). It would follow, in my opinion, that the Evidence Act, s 140 would not apply to the assessment of evidence in a legislative framework where the rules of evidence do not apply.

51. It was suggested that the decision of this Court in Director General of Community Services; Re Sophie [2008] NSWCA 250 at [48] was authority that the Briginshaw standard applied to a case such as the present and, accordingly, that his Honour was correct in considering that he was required to determine whether the allegations of sexual abuse had been made out on the Briginshaw standard.

52. In M v M, the High Court considered that the Family Court should not make a positive finding as to the truth of an allegation of sexual abuse unless satisfied according to the civil standard of proof, having regard to the factors mentioned in Briginshaw v Briginshaw, per Dixon J at 362:

“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”

53. The Briginshaw standard, like the principle in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8, is often misunderstood. Correctly applied, as the Court stated in Re Sophie at [50]:

“… The requirement stated in Briginshaw v Briginshaw, that there should be clear and cogent proof of serious allegations, does not change the standard of proof, but merely reflects the perception that members of the community do not ordinarily engage in serious misconduct: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171, per Mason CJ, Brennan, Deane and Gaudron JJ; Palmer v Dolman [2005] NSWCA 361 at [41]-[47] per Ipp JA (with whom Tobias and Basten JJA agreed).”

54. I accept that where there is an allegation such as of sexual abuse in circumstances such as arise in this case, it is appropriate and necessary to apply the Briginshaw standard, as properly understood. Indeed, it is generally accepted that there is no underlying conceptual difference in the application of the Briginshaw standard and the Evidence Act, s 140.

55. However, as the High Court pointed out in M v M at [22], an inability of the court to make a positive finding of abuse does not conclude the question of the appropriate order to be made, in that case involving custody or access to a child, where the paramount consideration is the “best interests of the child”. The same position applies to the appropriate order to be made under the Care and Protection Act. Having regard to these principles, the primary judge was required to assess the evidence to determine whether K would be exposed to an unacceptable risk of sexual abuse if restored to the care of her parents including her father.

56. NU’s particular complaint is that he was denied procedural fairness, whether that be pursuant to the rule in Brown v Dunne or some more general principle of procedural fairness, in circumstances where his denial of sexual abuse was not the subject of cross-examination. It is well established that a failure to afford procedural fairness, where there is a requirement to do so, constitutes error of law which is jurisdictional in nature: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [26]-[42] per Gaudron and Gummow JJ (Gleeson CJ agreeing); Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 at [213] per Kirby J; Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 186 per Handley JA.

57. It is also well established that a finding made in the absence of cross-examination may involve a denial of procedural fairness: see rule in Browne v Dunn. The meaning of the rule in Browne v Dunn was explained by Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1 at 16:

“It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn. That rule of practice follows from what I have always believed to be rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn (1894) 6 R 67.”

58. There is a clear corollary of the rule, namely, that if a witness is on notice of the allegation upon which a party intends to rely and is on notice that his or her evidence is contested on that issue, the rule does not mandate that the witness be cross-examined on the matter. This was explained in Browne v Dunn by Lord Herschell LC at 71, who pointed out that there was no obligation to raise such a matter where it is:

“… perfectly clear that [the witness] has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling … All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted.”

See also West v Mead [2003] NSWSC 161 per Campbell J at [94]-[97].

59. There is another aspect of fact finding which is presently relevant. A failure to cross-examine on an issue does not require the fact finder to accept the witness’ evidence. In Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234 the Court (Campbell JA, Allsop P and Basten JA agreeing) stated, at [105]:

“While the evidence was not cross-examined on, that does not necessarily mean that the judge was obliged to accept it. A judge can reject evidence that has not been cross-examined on if, for example, it was inconsistent with other evidence that he accepted, or if it was inherently incredible.” (citations omitted)

60. In Bradley v Matloob [2015] NSWCA 239, McColl JA, at [7], further explained that there was no requirement to accept the evidence of a witness where, for example, the evidence is:

“… inherently illogical or unreliable, or where the opposing party calls evidence of a substantial nature directly contradicting the evidence on which there was no cross-examination …”

61. However, as her Honour also observed:

“… in many cases it would be wrong, unreasonable or even perverse to reject evidence upon which there has been no relevant cross-examination.”

See also RCR Tomlinson Ltd v Russell [2015] WASCA 154 at [70].

62. In the present case, it is unnecessary to determine whether there would have been a denial of procedural fairness had NU not been cross-examined on his sworn denials of having sexually assaulted J. Nor is it necessary to determine whether there is some other or additional principle of procedural fairness that ought to have governed the conduct of the matter. NU was clearly on notice that the allegations of sexual abuse preceding the alleged occasions in March 2013 were in issue.

63. The evidence before the Children’s Court and on appeal in the District Court included the JIRT interview and the transcript of J’s cross-examination in the criminal proceedings, which included extensive cross-examination on her allegations of earlier abuse occurring over a number of years. It also appears that no application was made that J give oral evidence in either court. The Court was informed that it is unusual for a child witness to be required to attend to give oral evidence.

64. In her JIRT interview, J made the following statements:

“Q56   So [J] you said, I asked you why you were here to talk to me about and you said because my dad touched me inappropriately. Can you tell me more about how your dad touched you?

…

Q57   … what do you mean by inappropriately?

A   He used to touch me on my vagina.

…

A   Well every time we’d cuddle, I don’t know, when I was in Year 1 I think it was when he started doing it.

…

Q60   … Can you tell me everything that happened from the beginning to the end?

A   O.K. When, when he, when we woke up because we weren’t allowed to actually wake up until they had been, like, until they woke up and when they did wake up um [L] and [KU] used to go into the kitchen to make breakfast and I used to go into dad’s room and like cuddle with him and then he, he was, he, we were cuddling and then he just started putting his hand down my pants and touching me in my vagina and like I tried to, one time I tried to get away and he said ‘No, I’ll stop, I’ll stop’ and so I just kept cuddling him but he just kept doing it.

…

A   And then one time I tried to get away but he, he said ‘No, I’ll stop, I’ll stop’ and so I gave him another cuddle and he just kept doing it.

Q62   And what happened then?

A   Well, and then I just went out. Usually after that …

…

A   … [KU] usually said it’s time for breakfast and so I went out there for brekkie. And then we just got dressed and played outside.

…

A   … when, like when [KU and L are] still in bed he doesn’t do it when they’re still in. He only does it when they go out and he doesn’t want anybody knowing that he’s done it to me. And he said he would give me a lollipop if I never, if I didn’t tell anybody. And if I hadn’t, and if I had done what he told me to do I wouldn’t be here right now and I wouldn’t have told the truth.”

65. In NU’s criminal trial, in addition to J’s evidence as to the weekend in April 2013, being the dates of the particularised charges, her cross-examination included the following:

“Q.   [J’s aunt, TA] asked you this question ‘Mum’s just told me that Dad’s done some things to you, do you want to tell me what happened?’?

A.   Yes.

Q.   Do you remember saying to her that when you’d stay at your Dad’s he would hug you and put his hands down your pants inside your undies?

A.   Yes.

…

Q.   Are you sure that dad put his fingers inside and not just on your vagina?

A.   Yes.

…

Q.   Your father never put his hands down your pants; do you agree with that or not?

A.   No.

Q.   He never put his hands on or in your vagina; do you agree with that or not?

A.   No.”

66. The relevant cross-examination of NU by the Secretary’s legal representative in the District Court appeal proceedings was as follows:

“Q. What about [J], you’ve got a section 128 certificate, you’re protected?

A.   Yeah.

Q.   What do you say is her motive for making the complaint?

A.   I don’t know. I don’t know exactly.

Q.   What about the truth? Was it true?

A.   No.

Q.   You agree that at the trial she was honest enough to say, look, on the date of [KU’s] birthday, there wasn’t an incident in which she was alone with you in the bedroom in order for the sexual offending that she was complaining about to have occurred; do you agree that she was honest enough to say that?

A.   Yep.

…

Q.   [J] was a truthful witness about that event?

A.   Yep.

Q.   But on your account, she’s not truthful about all the other events which were not subject of the charge?

A.   Yeah.

Q.   Can you reconcile the two? Can you explain why she would be truthful about what matters to you and not about what didn’t?

A.   No, I don’t.”

67. NU was referred to his affidavit of 27 September 2016 in which he had apparently reconsidered whether AA and TA had motivated J to fabricate the allegations against him. He said that he made those statements because he was “trying to put the blame on everybody else instead of trying to work out what either really happened or find out what really happened”. He agreed that he had been wrong about AA and TA.

68. NU’s cross-examination continued:

“Q.   You’re not wrong about [J]?

A.   Not about the statement, no, not about what she said.

Q.   The sexual allegations?

A.   No.

Q.   Let’s call a spade a spade.

A.   Yeah.

…

Q.   What happened on or about 27 September to change your mind [about AA and T]?

A.   A lot of things, a lot of thought about these proceedings and about trying to get my family back together and, so—

Q.   Let’s explore them if we may. What were the thoughts that you had that made you think ‘I need to stop presenting myself in a positive light and take responsibility for what I did’, what happened or what were your thoughts about taking ownership of that?

A.   I want to take ownership of what I’ve done in regards to [K].

Q.   But why did it occur on 27 September … what occurred, if anything?

A.   I sat down and thought about it many, many times and realised that there could be more than one explanation for what has actually happened.

…

Q.   Would you agree that on a number of occasions today when I’ve asked you for the insights about changes in attitude to attitude about things you haven’t been able to share them with us, would that be fair?

A.   Yeah.

Q.   You say it took two years of contemplating your situation but to this day you can’t tell us what insights or conclusions you’d come to other than ‘Well, I was angry’?

A.   I don’t have a conclusion because I still don’t know the answers of what actually really happened.”

69. NU was also cross-examined by the independent legal representative for the child. Relevantly, there was cross-examination as to what he had said to Mr O’Grady, the departmental child psychologist, as follows:

“Q   … paragraph 15 [of Mr O’Grady’s report] says ‘[NU] thought that [J] had lied both to JIRT and in court’ now do you agree you said that to Mr O’Grady?

A.   Yep.

…

Q.   [The report] goes on to say that you said you thought ‘[J] had fabricated allegations of sexual abuse having occurred over several years’, do you agree you said that?

A.   Yep.

Q.   [The report] goes on to say that you’ve said ‘the Court had proven that [J] had lied and was convinced she had made up dates’ do you agree that you said that?

A.   Yep.

…

Q.   Going to the first part of that, it says, ‘[NU] said that the Court had proven that [J] had lied”, do you say you did say that to Mr O’Grady, that the Court had proven that [J] had lied?

A.   Yeah, I did say that.

Q.   Do you still say that, that the Court had proven that [J] had lied?

A.   No.

…

Q.   Why not?

A.   Because I’ve had a chance to read through everything carefully properly now.

…

Q.   You say that the [District Court] didn’t say she was lying about anything ever happening. The Court was saying that nothing happened on the particular dates which was that particular weekend. Do you say the Court made a finding that she’d lied about it or do you think she’d lied about those dates or she was mistaken?

A.   I don’t – I don’t know. I don’t know if she lied or not.

Q.   But as far as her saying it did happen generally prior to that weekend on other dates, you say that’s a lie?

A.   It’s a mistruth. It’s definitely something that hasn’t happened.”

70. NU knew from the JIRT interview and the cross-examination of J in his criminal trial the circumstantial detail, such as the way the family usually functioned and interacted when J stayed at NU’s home. He also knew the detail of what J alleged occurred and the way she alleged the abuse occurred in the period leading up to the last weekend in March 2013. Given the specificity of the allegations made by J and the cross-examination of NU in the District Court appeal proceedings, I do not consider that there was any failure to afford procedural fairness, whether that be pursuant to the rule in Browne v Dunn or on the basis of a broader principle of procedural fairness. It is relevant to that conclusion that NU’s cross-examination was preceded by his acceptance that neither AA nor J’s aunt, TA, had been motivated to get J to make a false complaint about him, that having been his initial assumption when he was arrested.

71. Whilst NU was not cross-examined about the details of J’s allegations, the precise details of which he knew, he was asked, under the protection of a certificate issued pursuant to the Evidence Act, s 128, whether the allegations were true. He denied the truth of the allegations. Where NU had full notice of the allegations, the general question contained the particulars of the allegation and that is what was denied.

72. Although NU could have been asked more detailed questions in cross-examination, that is not the point. In a case such as the present, where the question whether a person did or did not engage in particular conduct is not the matter in issue, I do not consider that a failure to cross-examine on the detail of what was described as the circumstantial evidence constituted a breach of procedural fairness. This is the more so in this case when the detail of the allegation was fully known.

73. Nor do I consider that the submission that, as a matter of procedural fairness, NU had the opportunity to give evidence in chief refuting the detail of the allegation, has had the effect of reversing the onus on the Secretary of establishing a proper case for the making of a care order.

74. I also consider that the cross-examination of NU was sufficient to enable the primary judge to make an assessment of NU’s evidence and in particular, whether he could be satisfied of a likelihood of abuse having occurred. NU was closely questioned, for example, as to what he thought J’s motive was in making the allegations, and as to why he no longer alleged that J had lied, as opposed to not knowing whether she had lied. Whilst he was not cross-examined on the detail of the sexual conduct J had alleged, it is difficult to see how that would have assisted the primary judge to make the determination as to whether there was a likelihood of abuse having occurred in circumstances where NU had denied any sexual conduct at all. Nor could it be said, having regard to the evidence, including NU’s cross-examination, that his Honour was precluded, as a matter of law, from making a finding of unacceptable risk of the likelihood of abuse having occurred.

75. It follows, in my opinion, that NU did not make out the first error of law on the face of the record for which he contended.

Did his Honour fail to give adequate reasons for his decision?

76. NU submitted that, if he was unsuccessful in demonstrating that his Honour erred in law in finding an unacceptable risk in the absence of cross-examination of NU on the critical evidentiary dispute, then his Honour nonetheless erred in law in failing to adequately reveal the reasoning process which led him to his conclusion. It was submitted that none of the authorities to which his Honour referred adequately explained his decision.

77. His Honour’s reasons are considered in some detail above. Accordingly, a further brief reference is sufficient. His Honour stated that the relevant test to be applied in determining whether there was an unacceptable risk to the child was that stated by the High Court in M v M to which consideration has been given above. His Honour also referred to the principles stated by Judge Johnstone, President of the Children’s Court, in the Harper Children case. In relation to the question whether, under s 83, there was “a realistic possibility of restoration” to a parent, Judge Johnstone said at [25]:

“•   There are two limbs to the requirements for assessing whether there is a realistic possibility of restoration. The first requires a consideration of the circumstances of the child or young person. The second requires a consideration of whether the parent(s) are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care.

• The determination must be undertaken in the context of the totality of the Care Act, in particular the objects set out in s 8 and other principles to be applied in its administration, including the notion of unacceptable risk of harm.”

78. In this case, the primary judge stated that the rule in Browne v Dunn did not apply because “what the Court is having to decide in this case is whether there is an unacceptable risk of harm to the child”. His Honour continued:

“… in terms of matters of fairness, using the rule of Browne v Dunn, it is a rule ordinarily which, when objection is made, is to preclude a party from leading evidence of a fact in issue sought to be led on the responding case that was not put in cross-examination to a material witness for the moving party.”

79. His Honour considered that the matter before him was factually similar to M v M in that if the allegations made by J were accepted, they would establish an unacceptable risk of harm. His Honour found that there was a likelihood of abuse having occurred and thus held there was an unacceptable risk of harm to K. In reaching this conclusion, his Honour considered that it was apparent from J’s JIRT interview and her cross-examination in the criminal trial and having regard to the assessment others had made of her that she had appeared to be “balanced, reliable, intelligent”. His Honour also considered it relevant, or as he put it, a matter that “loomed large”, that KU had breached the second care plan.

Consideration

80. In my opinion, NU has not demonstrated any error of law on the face of the record as alleged in the second ground of challenge on the application for review.

81. NU in his submissions to the primary judge contended that he was “entitled to know the case made against him”. He complained that:

“Particulars of dates, alleged incidents and the nature of any assaults were not provided to [him] so that he was able to provide full and frank answers to the allegations”.

82. That submission simply did not reflect reality. NU had full details from the JIRT interview and from J’s cross-examination in the criminal trial. The context allegations, that is, the general allegations of sexual assault which were not the subject of the criminal charges, were also detailed. J had given details of the type of sexual conduct and the circumstances in which and when, save for particular dates, she alleged the conduct occurred. It was in that context that his Honour was required to consider whether there was a “unacceptable risk of harm” and the possibility of restoration to the parents. As his Honour observed, if the allegations made by J were accepted, that established an unacceptable risk of harm to K. His Honour had earlier found that there was “compelling evidence from [J] that abuse was likely to have occurred earlier” than the charged assaults J had alleged. His Honour did not make a finding that abuse had occurred.

83. This finding demonstrated that his Honour understood and applied the correct legal test in determining whether there was an unacceptable risk. Insofar as his Honour considered that the rule in Browne v Dunn did not apply to the case, that was because, as I understand the import of his Honour reasons, the resolution of the factual contest between NU and J, that is whether sexual abuse had or had not occurred, was not determinative of whether there was an unacceptable risk of harm. Not only was there was no error of law in that approach it is apparent how and why his Honour reached that conclusion.

84. I would accordingly reject the second challenge to his Honour’s determination and it follows that the summons should be dismissed with costs.

85. McCOLL JA: I agree with Beazley P’s reasons and the orders her Honour proposes.

86. SCHMIDT J: I agree with Beazley P.

**********

Amendments

15 May 2018 - Typographical errors corrected at [36], [77], [82]

06 September 2017 - Coversheet: instructing solicitors amended

Decision last updated: 15 May 2018