NU v NSW Secretary of Family and Community Services

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.

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).

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

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

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.

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.

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.

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.

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.

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.

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:

Section 60 provides:

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:

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.

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).

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).

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).

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).

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.

Section 91 provides:

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:

Section 96 provides:

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”.

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.

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

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.

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.

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:

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.

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.

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”.

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.

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:

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.

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.

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.

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.

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.

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.

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.

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 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.

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.

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.

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.

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”.

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.

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”.

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

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.

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.

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 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]:

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.

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.

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.

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:

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:

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]:

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:

However, as her Honour also observed:

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.

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.

In her JIRT interview, J made the following statements:

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:

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

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.

NU’s cross-examination continued:

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:

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.

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.

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.

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.

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.

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.

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.

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]:

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:

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.

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.

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

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.

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.

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

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

SCHMIDT J: I agree with Beazley P.