D W & anor v Dept Community Services and ors - [2008] NSWDC 156

Reported Decision:
7 DCLR (NSW) 144

District Court

CITATION: D W & anor v Dept Community Services and ors [2008] NSWDC 156

HEARING DATE(S): 29/4/08
16/5/08 - 23/5/08

JUDGMENT DATE:
30 May 2008

JURISDICTION: Civil

JUDGMENT OF: Williams DCJ at 1

DECISION: Appeals upheld. Orders of Childrens Court quashed.

CATCHWORDS: appeal from Childrens Court - care proceedings - serious allegation involving sexual misconduct - degree of proof required - relevance of good character - relevance of witness demeanour - differing scientific opinion as to transmission and infection with an STD - case on appeal substantially different to case before Childrens Court

LEGISLATION CITED: Childrens and Young Persons (Care and Protection) Act
Evidence Act

CASES CITED: Briginshaw 1938 60 CLR 336; 1938 HCA 34
in Re Alastair (2006) NSWSC 411
SB v Parramatta Children’s Court (2007) NSWSC 1297
In re O (Minors)(Care:Preliminary Hearing) (2003) 2WLR 1075 @ 1080

PARTIES: DW
KW
Department of Community Services
MW

FILE NUMBER(S): No:1606/08 ; No:1690/08

COUNSEL: Mr Wells QC (of the SA Bar) & Mr Webber for DW
Mr M Anderson for KW
Mr Temby QC & Mr Allen for DOCS
Ms E Lawson for MW

SOLICITORS: Stephen Bottrill Solicitors & Attorneys
Belinda Eyers & Associates
State Crown Solicitor (Ms C Samuels)
Darnell & Associates

JUDGMENT:

Preliminary

1. Proceedings were brought in the Children’s Court Care Jurisdiction in regard to a child (M W) of the marriage of D W (father) and K W (mother). The proceedings were instigated by the Dept of Community Services (DOCS) alleging, under s71 (1) (c) of the Childrens and Young Persons (Care and Protection) Act, that the child had been and was at risk of being sexually assaulted by D W. The basis of this allegation relates to the fact that the child, aged 5 at the time, contracted neisseria gonorrhea, which I will refer hereafter as NG or N gonorrhea or gonorrhea. There is no dispute that at the relevant time D W had contracted NG. There is no dispute that he was the only source of possible infection of the child. What is in dispute is the manner of that infection. DOCS allege that the only or most probable cause of the child contracting NG is by sexually intimate conduct of some description. D W says that no such conduct ever occurred and that there were possible alternatives for transmission, namely:

(a) communal bathing

(b) sharing the same towel

(d) using a contaminated swing.

2. The principal experts were Professor M Hammerschlag for DOCS and Professors Goodyear-Smith and Tapsall for D W.

3. These three persons appear to have the greatest expertise of all the medical practitioners relied on. Drs Dayan, Fairley, Denham, Donovan, McNulty, Ingall, and Tzioumi provided additional support for one view or the other. Basically Professor Hammerschlag says that NG infection is related solely to contact of a sexual nature. Professor Goodyear-Smith and Professor Tapsall say that although NG is predominantly transmitted sexually, it can be transmitted…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading D W & anor v Dept Community Services and ors

Details

AGLC: D W v Dept Community Services [2008] NSWDC 156
Case: [2008] NSWDC 156
Decision Date: 30 May 2008

CaseChat Overview and Summary

D W and another (the first and second appellants) appealed against orders made by the Children's Court concerning their children. The respondents to the appeal were the Department of Community Services and others. The nature of the dispute centred around allegations of serious sexual misconduct involving the children, which led to the Department seeking care and protection orders. The court was tasked with determining the degree of proof required in such cases, the relevance of the parents' good character, and the significance of witness demeanour. Additionally, the court had to consider differing scientific opinions regarding the transmission and infection of sexually transmitted diseases.

The legal issues before the court included the standard of proof necessary in care proceedings involving allegations of sexual abuse, the admissibility and weight of evidence concerning the parents' good character, and the role of witness demeanour in assessing credibility. The court also had to evaluate the conflicting scientific evidence on the transmission and infection of sexually transmitted diseases, which was pivotal to the case. Furthermore, the court needed to address how the case presented on appeal differed from the one considered by the Children's Court.

The court found that the Children's Court had erred in its application of the standard of proof and in its assessment of the evidence, particularly concerning the parents' good character and the demeanour of witnesses. The differing scientific opinions on the transmission and infection of sexually transmitted diseases were also found to have been inadequately weighed. Given these errors, the court concluded that the orders made by the Children's Court were not supported by the evidence. Consequently, the appeals were upheld, and the orders of the Children's Court were quashed.

Orders

Orders of the court

Appeals upheld. Orders of Childrens Court quashed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	D W & anor v Dept Community Services and ors [2008] NSWDC 156
HEARING DATE(S):	29/4/08 16/5/08 - 23/5/08
JUDGMENT DATE:	30 May 2008
JURISDICTION:	Civil
JUDGMENT OF:	Williams DCJ at 1
DECISION:	Appeals upheld. Orders of Childrens Court quashed.
CATCHWORDS:	appeal from Childrens Court - care proceedings - serious allegation involving sexual misconduct - degree of proof required - relevance of good character - relevance of witness demeanour - differing scientific opinion as to transmission and infection with an STD - case on appeal substantially different to case before Childrens Court
LEGISLATION CITED:	Childrens and Young Persons (Care and Protection) Act Evidence Act
CASES CITED:	Briginshaw 1938 60 CLR 336; 1938 HCA 34 in Re Alastair (2006) NSWSC 411 SB v Parramatta Children’s Court (2007) NSWSC 1297 In re O (Minors)(Care:Preliminary Hearing) (2003) 2WLR 1075 @ 1080
PARTIES:	DW KW Department of Community Services MW
FILE NUMBER(S):	No:1606/08 ; No:1690/08
COUNSEL:	Mr Wells QC (of the SA Bar) & Mr Webber for DW Mr M Anderson for KW Mr Temby QC & Mr Allen for DOCS Ms E Lawson for MW
SOLICITORS:	Stephen Bottrill Solicitors & Attorneys Belinda Eyers & Associates State Crown Solicitor (Ms C Samuels) Darnell & Associates