Nu v NSW Secretary of Family and Community Services

The New South Wales Court of Appeal considered an appeal concerning allegations of sexual abuse of a daughter by her father, brought under the *Children and Young Persons (Care and Protection) Act 1998* (NSW). The Secretary of Family and Community Services sought orders relating to the child's welfare. The central dispute revolved around the appropriate legal test to be applied when assessing the risk of harm to a child in such circumstances, particularly where a definitive finding of abuse could not be made.

The Court was required to determine whether the inability to make a positive finding of sexual abuse was determinative of the ultimate question of whether there was an unacceptable risk of harm to the child. Further, the Court considered the application of the standard of proof under section 140 of the *Evidence Act 1995* (NSW), specifically the *Briginshaw* standard, in proceedings involving allegations of child abuse. The Court also addressed issues of procedural fairness, including the application of the rule in *Browne v Dunn* and whether the absence of cross-examination on the particulars of the allegations precluded a finding of unacceptable risk.

In its reasoning, the Court affirmed that the paramount consideration in child welfare proceedings is the safety and well-being of the child. It held that the absence of a positive finding of abuse does not necessarily preclude a finding of unacceptable risk of harm, particularly when the evidence, viewed holistically, points to such a risk. The Court applied the *Briginshaw* standard, requiring that allegations of a serious nature be established on the balance of probabilities, but clarified that this standard does not mandate a positive finding of abuse to justify protective orders. The Court also found that while the rule in *Browne v Dunn* is important, its application must be considered in the context of the specific evidence and the overall fairness of the proceedings, and that the father had sufficient notice of the allegations against him.

The Court of Appeal dismissed the summons, ordering that the appellant pay the costs of the proceedings.