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

(c) sharing the same sleeping arrangements

(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 non-sexually.

4. A non-sexual transmission of D W’s NG to his daughter may give rise for concerns as to the appropriateness of certain so called cultural conduct engaged in, but would not require the intervention of the minister under the act.

5. To find otherwise, the court would need to be well satisfied on the balance of probabilities that it is more probable than not, that the child’s infection was caused by inappropriate sexual conduct on the part of the father.

6. That involves findings of fact as to what exactly was the contact between D W and the child at the time, coupled with the relationship of that conduct to the available medical evidence. The problem cannot be resolved statistically. A 1% chance of no sexual transmission must be looked at in light of the known facts and would not equate to being well satisfied that improper conduct occurred.

7. The allegation against D W is of a high order. Not only is it alleged that he had inappropriate sexual contact with his child but that in effect he did so knowing he had a sexually transmittable disease.

8. In Briginshaw 1938 60 CLR 336; 1938 HCA 34 Dixon J said:

“The importance and gravity of the question make it impossible to be reasonably satisfied of the truth of the allegation without the exercise of caution and unless the proofs survive a careful scrutiny and appear precise and not loose and inexact. Circumstantial evidence, susceptible to some other not improbable explanation, cannot satisfy a sound judgment of a state of facts.”

9. In civil proceedings S140 of the Evidence Act provides for proof on the balance of probabilities, taking into account the nature of the case, the nature of the proceedings and the gravity of the matters alleged. In other words proof on the balance of probability will vary according to the type of proceedings and the seriousness of the allegations.

10. This is not a criminal trial. The court does not have to be satisfied beyond reasonable doubt. However, the allegation is serious and the outcome is serious because the child’s father has, so far, been denied any access to the child until the age of 18.

11. The dynamics of the parental relationship seems to have changed since the Children’s Court proceedings, in that it now appears that K W may no longer be committed to a relationship with D W, not necessarily because of these proceedings, but because of his behaviour in Bali, which caused him to become infected with NG.

12. Appeals to the District Court from the Children’s Court are governed by s91 of the Act. S91 (2) provides that appeals are to be by way of a new hearing, which can include fresh evidence, additional evidence or evidence in substitute for evidence given in the Childrens Court. Sub section (3) empowers the District Court to admit into evidence on the appeal, the transcript and exhibits of the Children’s Court. It is fair to say that the proceedings in the Children’s Court were conducted in a substantially different way to how the proceedings have been conducted before me.

13. This is a difficult case, principally because no matter what the court finds, there will be no certainty in that finding. Sometimes in civil cases a finding of a positive is made purely on a percentage balance of the probabilities in that there is at least a 51% chance that the finding is correct. More often than not, in reality, the probabilities are more concrete.

14. This case was listed for hearing on 29/4/08. These cases normally proceed in what is called 2 phases, the establishment phase and the welfare phase. The first phase determines whether or not DOCS has made out its case for the child requiring care. The second phase determines, if necessary, how that care should be implemented.

15. Regrettably, instead of proceeding with the evidence of D W and K W on 29th April, the matter was adjourned until May to enable the overseas experts to be available and to allow a number of the experts to have a conclave to see what points of agreement could be reached in regard to contested scientific issues. It was only after the experts had been called that D W and K W gave evidence leading Mr Temby to comment that the case had been run somewhat back to front. It would certainly have been advantageous to have had the principal experts listen to, or have available, D W’s evidence before giving their opinions.

16. I am satisfied that certain medical or scientific facts have been well established. Before I deal with those facts, I should define a number of terms that have and will be used:

(a) Gonococci: refers to the active organism neisseria gonorrhoea

(b) Urethra: refers to the passage in the male penis that voids urine and semen and in the female genitalia that voids urine.

(c) Epithelium: refers to a skin surface that exists either externally or internally.

(d) Mucosal surface: refers to epithelium that also constitutes a mucosal surface, which is a surface that exudes mucous.

(e) Fomates: refers to a term used to describe either inanimate objects or non-human animate objects, eg such as flies.

(f) Neisseria gonorrheae: is an organism that exists in warm moist conditions and causes physical reactions in its host. It is regarded as a Sexually Transmitted Disease (STD) or a Sexually Transmitted Infection (STI) because preponderantly infections of NG are caused by a sexual act of some description. An adult male with NG is more likely to infect an adult female by sexual contact than is an adult female likely to infect a male. Recognised cases of non-sexually transmitted NG can occur in newborn children if the mother has the disease, because of the child’s passage through the vagina and uterus. NG is readily treatable with antibiotics.

It has an incubation period of about 2-5 days. Symptoms in a male can be discomfort in passing urine and a discharge via the urethra. This discharge carries the NG gonococcus. NG cannot survive heat or if the medium in what it is being carried dries out. NG survives and infects a person by attaching itself to and remaining on a mucosal surface. Not all mucosal surfaces are suitable but the following are:- Mucosal surfaces in:- the female genitalia and the male urethra; the anus; the pharynx; and the eyes. Within the female genitalia, the mucosal surface likely to be the site of infection is different depending upon whether the female is pre or post pubertal. In pre pubertal girls, the mucosal surfaces forward of the hymen are more susceptible to be infected with NG, whereas in post pubertal girls and women, the most susceptible mucosal surface is higher in the genitalia.

No clinical experimental studies have been done in regard to pre pubertal girls for obvious reasons. There has only ever been one experimental study done on any group and that was on adult males about 30 years ago in the USA. Indeed, NG in a pre pubertal girl in western society is quite rare. Professor Hammerschlag has had clinical experience of only 100 girls in 30 years. Professor Tapsall has only been asked to examine two such cases.

(g) Labium majus/labium minus:- The outer non-mucosal epithelia of the vulva

(h) vestibular fossa, fourchette, hymen:- The mucosal epithelia of the vulva

(i) vagina, cervix:- mucosal epithelia of the female genitalia beyond the hymen

(j) inoculum:- a minimum number of viable gonococci in a transferable form

17. The parties agreed on a conclave of experts. That conclave met on 14 May 2008 and provided answers to the questions asked in a document, exhibit A, in these proceedings. The usefulness of the conclave is, in my view, debatable as it consisted of Dr Hammerschlag on behalf of DOCS and Drs Tapsall, Goodyear – Smith, Fairley and Denham on behalf of the father. The most controversial issue to be discussed was whether NG could be transmitted non-sexually and, if so, could it be transmitted in certain given scenarios. Drs Hammerschlag, Goodyear-Smith and Tapsall gave evidence in person and Drs Denham and Fairley gave evidence via a telephone link up.

18. Dr Hammerschlag was of the view that the circumstances of transference non-sexually by fomates were so incredibly unlikely as to be virtually impossible. Dr Goodyear-Smith researched the literature on the issue and has now written a paper on the subject, exhibit 2. Her conclusions in that regard are generally accepted by the father’s other experts. Dr Hammerschlag’s criticism of some of the studies referred to by Dr Goodyear-Smith is their age and their lack of appropriate verification. Some of the studies relied on, pre date World War 1 when drugs like penicillin and other antibiotics were not available.

19. Some of the experts have referred to reported one off incidents of alleged non-sexual transfer to support their position. One such case involved a plane toilet seat and a young girl and one involved a teenage girl’s towels that had a discharge of some description on them. Having looked at the information relied on, I set such instances completely aside as being quite unsubstantiated by any proper investigation and, even accepting the father’s experts at the highest possible level, these isolated instances are so incredibly improbable as to have no value at all.

20. A number of studies located by Dr Goodyear-Smith relate to non-sexual transmission in institutions such as orphanages and hospitals. I see no reason not to accept the view that the infection in question was indeed NG, having regard to the evidence as to the available means of properly identifying the organism. However, conditions that might pertain in a crowded institution are not the conditions that pertained in the present case and whilst such studies support the view that non-sexual transmission can occur, they are not particularly helpful to the court.

21. In any event, it is not the court’s function to settle the scientific dispute. Having regard to the evidence and the learned articles that have been tendered, as in exhibits 2, D and 6, I suspect that this dispute will never be resolved on current scientific knowledge.

22. However, I accept on the balance of probabilities, that if the right conditions exist, NG can infect a person without their necessarily being some form of sexual contact. Those conditions are the transfer of viable inoculum by any means to a mucosal surface.

BACKGROUND

23. It is perhaps appropriate to set out in chronological order some relevant background facts. D W was born on 12/4/73. K W was born on 17/11/71 and is a Japanese citizen. M W was born on 29/7/01. D W and K W met in Japan where they lived off and on for some time before getting married. M W was born in Australia but speaks both English and Japanese.

24. Chronology:

08.07.06 – D W departs for Bali.

16.07.06 – D W has unprotected sexual intercourse with a prostitute in Bali.

19.07.06 – D W returns from Bali and sees a GP at 4.30pm. Between this date and

24.07.06 - M W is infected with the gonorrhea bacteria

23.07.06 or 24.07.06 – D W and M W spend one night together without the child’s mother on one of these dates (affidavit 01.04.08, paragraph 31) or they spend “at least two nights” together at Mullumbimby (ERISP Q/A144).

25.07.06 – K W notices discharge from M W’s vagina.

29.07.06 – M W’s 5th birthday at Mullumbimby.

14.08.06 – Dr Solomon sees M W again – refers her to Dr Ingall.

18.08.06 – M W admitted to Lismore Base Hospital.

19.08.06 – D W returns from Bali.

21.08.06 – D W interviewed.

22.08.06 – K W interviewed.

23.08.06 – M W interviewed.

07.09.06 – D W charged with having sexual intercourse with M W.

17.07.07 – Criminal proceedings withdrawn.

24.07.07 – Hearing before Mitchell SCM.

24.08.07 – Care orders made

DISCUSSION

25. K W noticed a discharge from her daughter on 25/7/06 which means that M W was infected somewhere between 19 and 22/7/06, if the incubation period of 2-5 days is correct for pre pubescent girls. D W did not notice a discharge until 20 or 21 July 2006, which tends to make the window of opportunity for infection extremely small, either 20, 21 or 22 July 2006.

26. The evidence is unclear as to the exact date that D W and M W went to Mullumbimby. In his affidavit D W says he spent one night alone with M W on or around 23 or 24 July 2006. In his ERISP, (Q/A 144 et seq.) he seems to agree that, at least he maybe stayed 2 nights at Mullumbimby with M W alone on about 20 and 21st July 06.

27. From cross-examination, it is apparent that D W and K W did not have sexual intercourse after he returned from Bali the first time. This was apparently not because he felt he had a contagious disease but because of a “degree of strain” in his and K W’s relationship. (T 21/5/08 – page 45.15).

28. M W’s birthday was celebrated at Mullumbimby (T. 22/5/08 – page 27.10 et seq.) Including the time D W and M W were together alone at Mullumbimby, the family had stayed there for 5 or 6 days before M W’s birthday. This would tend to suggest that the earliest date for being at Mullumbimby would be around 22/23/24 July 2006, which would also coincide with K W becoming aware of a discharge on 25/7/06 at Mullumbimby.

29. There is no evidence that D W’s being alone with M W at Mullumbimby was some sort of contrivance on his part. If anything, it was K W’s decision not to stay with him and M W, at least for one or two nights.

30. If D W sexually interfered with M W at this point of time, the court’s experience is that it is unlikely to have been an isolated episode. However, there is no evidence of major sexual interference with M W, either anatomically or through interviews with the child, or observation of the child’s behaviour including lack of complaint from the child at any time since then until the present. While lack of anatomical evidence and/or complaint is not conclusive, it is an important consideration, particularly bearing in mind that M W has been living with her mother ever since, except for two brief, and no doubt painful, times when she was removed from parental care. M W is apparently a healthy, bright, intelligent child who speaks both English and Japanese and yet has made no complaint of any unusual behaviour by her father towards her and indeed has expressed a strong desire to be able to see him again.

31. Of course, major penetrative sexual interference would not be necessary to communicate NG as long as there is contact between the living organism and the mucosal surfaces of the female genitalia. In that regard, I do not accept Dr Hammerschlag’s evidence that the existence of a probable tubal ovarian abscess in M W’s fallopian tubes necessarily means that the inoculum must have been deposited beyond the hymen. I accept that an infection that begins on the mucosal surfaces of the fourchette, vestibular fossa, or hymen could ascend into the fallopian tubes if left untreated, as this infection was, at least from 25/7/06 to 14/8/06. Dr Hammerschlag’s assertion (Ex B-14 page 3.9) that “in order for the cervix to have been infected, penetration into the vagina, beyond the vulva and through the hymenal opening (or orifice, the introitus) into the vaginal canal had to occur”, cannot be sustained on the balance of probabilities, having regard to Dr Tapsall, Dr Goodyear-Smith and a consensus of the other medical experts.

32. Evidence was given by D W and K W in regard to the day to day living arrangements of the family. I accept that the family tried to orient themselves to the Japanese way of living as much as that was possible within conventional western housing. I see no reason not to accept their evidence and see nothing wrong in their decision to do that and the practical matters put into place to achieve that end.

33. What appears to been the normal situation is that at night M W would sleep between her parents. In winter she would wear pyjamas and cotton panties. D W would wear a T-shirt and boxer shorts.

34. At bath time, M W would usually bathe with her father. The bath would be half filled with hot water and the doors and windows closed with the fan off to build up a warm, humid bath house atmosphere. When the water was cool enough they would bathe, after which the water was allowed to drain and then washing under the shower would take place, using a mild soap. When that was finished M W would be dried by her father, starting with her hair and using, as much as possible, or if it was remembered, her own towel. She would then be carried to the bedroom by D W or K W, either with or without a towel, to get dressed for bed.

35. If M W woke up during the night and wanted to go to the toilet, either D W or K W would accompany her and help her with toileting, particularly if she was still sleepy.

36. The conclave, in exhibit A, stated that NG has been experimentally found to survive up to 3 days, depending on the circumstances although there is no evidence in the present case for such an effluxion of time to be relevant or possible. At best we are looking at something that would have occurred within minutes rather than hours or days and I do not accept the likelihood, in the present case, of NG surviving on a towel over 24 hours. The conclave concluded that NG survives best at 30-35 degrees centigrade and in circumstances of high humidity which would be likely to occur, as might be expected, on objects and surfaces, clothing and towels and hands and other body surfaces in a steamy bathroom. Survival of the gonococcus on bedding and linen or on clothes that were being worn was less likely. Survival on toilet paper was possible but in bathwater was regarded as highly unlikely.

THE SO-CALLED SCENARIOS

37. It is in these general factual and scientific circumstances that a number of suggestions were made, as to how M W could have acquired NG non sexually.

The ball swing:-

38. One suggestion, not previously referred to above, was possible contamination from use of a ball swing at the Mullumbimby premises. At some stage, prior to her birthday, D W had put a ball swing on a tree at the premises as a birthday surprise. The swing consisted of a round marine float suspended from a branch by some rope. M W got some irritation between her legs caused, apparently, by over use of the swing, and tight jeans. Apparently a towel had been wrapped around the rope where it met the float to stop some looseness that occurred between the rope and the hole and the float through which it passed. K W said in evidence that she had a look at her daughter and “saw a little bit of red, just after she swing”. (T 22/05/08 – page 116.39)

39. In my view, apart from the fact that M W was probably already infected before the swing was installed, having regard to the chronology referred to earlier, the chances of her being infected as a result of D W urinating somewhere in the garden, having discharge on his hands, transferring that discharge to the swing or M W, and then it getting from the swing to M W and thence onto the mucosal surface of her genitalia, is a series of circumstances and chance happenings so remote as to really not be worth any serious objective consideration.

Communal sleeping:-

40. The next suggestion is that the transference of the inoculum could have occurred at night while everyone was asleep. In that regard, I am prepared to accept that M W, like most children that age, would change position throughout the night. However, for the organism to have infected M W in that situation sufficient live quantity would need to get through D W’s boxer shorts, her pyjamas, then her underpants and again onto, at least the mucosal surface of the vestibular fossa, fourchette or hymen. Even Dr Tapsall thought infection in that way was less likely to occur and, again, it seems to me that it would be highly improbable in any non-sexual way, especially given that there was no evidence of any discharge being observed on the bedding or linen. It would be speculative to consider some accidental transference of inoculum to M W’s hands and for her to have then placed them on her genitalia while asleep.

Toiletting:-

41. The suggestion was made as to toileting generally but in particular at night, as described by D W and K W. Although M W was apparently toilet trained, I am prepared to accept that she may have required help at times, especially when sleepy. The only possible circumstance of infection in such a case would be if the live inoculum was on the fingers of D W or somehow got onto the toilet paper and was transferred by those means to a receptive mucosal surface. Mr Wells mentioned that the coincidence of a hand, wet toilet paper and a mucosal surface close by could lead to such contact easily occurring.

42. Again, it seems to me that this is a less likely situation given the intervening steps and the evidence that if M W required assistance to wipe her genitalia, that wiping would be done from back to front. Whilst perhaps not highly improbable, it is only remotely possible rather than probable to any degree.

Bathing:-

43. The final and most persuasive suggestion relates to bathing. In that regard, the consensus was that survival of the gonococcus in bath water was highly unlikely, having regard to dilution and temperature factors. For all intents and purposes, I would not find that bathwater was a probable vector of the infection. This basically leaves towelling, using either or both hand towels or bath towels. No other object or surface has been suggested as being worthy of consideration and there has been no mention of any accidental direct contact of any part of M W’s body with the source of the discharge during or after bathing. Having regard to the medical evidence and the facts as revealed by D W and K W, I am prepared to accept the possibility that viable inoculum of a sufficient quantity could survive on a warm moist towel and could be capable of infecting M W if, whilst still viable, it came into contact with a receptive mucosal surface. While the chances of that occurring are remote in the circumstances, such a chance is at least a realistic possibility.

OTHER CONSIDERATIONS

44. Whether infection in fact occurred in any of those ways is impossible to say, just as it is impossible to exclude some form of sexual contact. A lot of time was spent in evidence dealing with a document called the CDC Guidelines – a U.S. publication by the Centre for Disease Control and Prevention. This document is exhibit C, and in table 6 that appears at page 83 it is stated that “implications for a diagnosis of gonorrhea in a pre pubertal child is that it is diagnostic for evidence of sexual abuse, provided rare non-sexual vertical transmission is excluded”.

45. This terminology uses a variety of words that have differing meanings in a medical, as compared to a legal, context. All I take the CDC Guidelines to mean in stating the above, bearing in mind it is a document prepared for medical professionals and not lawyers, is that for a doctor, NG in a pre pubertal girl is diagnostic of sexual abuse and should be reported, provided non sexual vertical transmission has been excluded. The document never meant to suggest that if a pre pubertal child was diagnosed with NG then that would, of itself, constitute legal proof of sexual assault. As Dr Tapsall said, “guidelines are just guidelines”. Whether or not CDC guidelines are followed in Australia or not, takes the position no further having regard to the generally accepted proposition that in Australian society, apart from new born children, genital NG in pre pubertal girls is more likely to have been caused by sexual interference than in any other way.

46. Inevitably, there have been differences between what was said in the ERISPs, what was said in the affidavits, and what has been said in evidence. Such differences as there are however, are not such as to cause the court to have a negative view as to D W’s credibility in particular. I have no doubt that D W has tried to distance himself from the consequences of his actions in Bali and Northern NSW. However, that is a fairly natural reaction and it is difficult to see anything particularly sinister in it.

47. The suggestion was made, and denied, that the reason why M W was not taken to a doctor earlier was that D W wanted to avoid the inevitable problems that would arise for him once her illness became known and had to be reported. Mixed up in all that is the fact that both parents tended to treat normal illnesses by so called natural therapies.

48. The failure to have M W properly examined reflects more on the issue of character than it does on the issue of whether or not sexual interference took place. It was all very well for D W to try and treat himself homeo-pathically, but exposing his daughter to an advancing disease that showed no sign of resolving was really quite inexcusable and, no doubt, lead to the more advanced stage of the infection that was observed on 19/8/06. In that regard, I do not accept that being “in denial” as he said that he was, operated as sufficient an excuse for not doing anything about M W at an earlier time. I do not accept that he did not realise the infectious nature of the infection he had, which would have been perfectly obvious from the relatively immediate occurrence of a similar infection in his daughter.

49. I also agree with the proposition that M W could have been interfered with, either not realising what was happening or not knowing what was happening, for example, if she was asleep or sleepy. I think it highly improbable that any such interference could have occurred while the family were together, so that if it did occur it was more likely to have occurred while D W and M W were at Mullumbimby, without K W.

50. As I stated earlier, the lack of physical findings and/or the lack of complaint by M W is not conclusive of there having been no sexual interference. As far as can be determined, the only memory M W might have of these events, if told about them, is the fact that she contracted NG from her father and was treated for it. She has no “bad” memories of any parental misbehaviour, as far as can be ascertained by normal therapies. One would hope that there is no attempt to expose her to the now discredited “recovered memory” treatments that achieved popularity some years ago.

THE ISSUE OF CHARACTER

51. D W has no criminal record.

52. In my view, D W was not an impressive witness, either in his ERISP or during his examination and cross-examinations. It is sometimes comforting and even appropriate to make a decision based upon the demeanour of a witness. However, such an approach has its dangers, particularly in a matter such as the present. I tend to agree with Mr Temby’s submissions that D W’s evidence at times did not carry conviction, that he tended to split hairs, and that at times, he was reluctant to take up un-tennable positions. However, in a case such as the present, unless a witness cane be shown to be untruthful or their evidence is patently incorrect, or their evidence is contradicted by other evidence, in my view, it would be dangerous to come to a conclusion about a fact in issue based on a view of a witnesses’ demeanour alone. I have, despite the reservation expressed, not taken into account against D W, my view of his demeanour as a witness.

53. D W’s character generally has been raised and is the subject of a number of affidavits, which are, exhibits 19.7 and 19.9-26. I note that of the 18 character affidavits relied on, fourteen of them make no reference to D W’s use of a prostitute, the contracting of NG or that disease being transmitted to the child; 2 make oblique reference to it; and 2 make some reference to aspects of it.

54. Mr Temby makes the point that K W, although initially rejecting the possibility of sexual interference by D W, is now neutral on the issue and she is a person, who, it is submitted, would know D W better and more intimately than anyone else. By the same token, as Mr Wells suggests, if anything untoward had happened to her daughter, K W would be the most likely person to have noticed something.

55. A number of the references, as well as D W and K W themselves, give evidence as to the perceived good relationship between the family as a whole and between M W and D W in particular. I see no reason not to accept this evidence but what effect it should have on the outcome is probably minimal.

56. The fact that D W went with a prostitute in Bali is, to my mind, neither her nor there, either morally or legally. It is of concern of course that he chose to have unprotected sex with such a person which, at best, indicates naiveté on his part or at worst carelessness of his own health.

57. However, what occurred thereafter is extraordinarily difficult to comprehend. At the point when he noticed a discharge from his urethra, I am satisfied he knew or at least highly suspected that he had an STD/STI. So much so that on his own evidence, he began to wash his own underwear and tried as much as he could remember to wash his hands and ensure that only he used his own bath and hand towels. And yet, with this regime in place, he continued to bathe with his daughter, dry her, help her with toileting, and sleep with her and her mother as was their otherwise usual practice.

58. Even more disturbing is the fact that he continued in this way on at least one or two nights and two or three days when he and his daughter were alone together, without the usual assistance provided by KW. I would have expected any reasonable parent in such circumstances to have isolated himself from the rest of the family until such time as the problem was resolved. It is difficult to reconcile a caring loving father on the one hand with the same person who exposes his very young daughter to an unknown risk of infection from a horrible disease.

THE LEGISLATION

59. Section 9 of the Children and Young Persons (Care and Protection ) Act 1998 sets out the principles to be applied in the whole of the administration of the act. The principles relevant to the present matter are :

(a) In all actions and decisions made under this Act (whether by legal or administrative process) concerning a particular child or young person, the safety, welfare and well-being of the child or young person must be the paramount consideration. In particular, the safety, welfare and well-being of a child or young person who has been removed from his or her parents are paramount over the rights of the parents.

(b) Wherever a child or young person is able to form his or her own views on a matter concerning his or her safety, welfare and well-being, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child or young person and the circumstances.

60. The remarks of Kirby J in Re Alastair (2006) NSWSC 411 at paragraphs 58 to 69 and Price J in SB v Parramatta Children’s Court (2007) NSWSC 1297 at paragraph 67 are also relevant to the considerations in this case.

61. The principle referred to in s9 (a) is one that has to be applied by the court in its own decision making process. Whilst, as Mr Temby has submitted, he has studiously avoided making submissions based on criminal law concepts, such concepts have, nonetheless, crept into consideration.

62. A direction is routinely given to a jury, in a case based on circumstantial evidence, that they cannot act on such evidence to the detriment of an accused, unless all other reasonably available alternative hypotheses have been excluded. Another direction is that they should not decide a factual issue based upon preconceived notions of how people behave. A number of submissions have been made as to the inconceivability of a parent knowingly behaving in the way D W is alleged to have behaved. It is the unfortunate experience of the court, especially in cases involving the sexual abuse of children, that common preconceptions have no place in reality and that serious abuse has been proved against parents, grandparents and a variety of other relatives or trusted persons.

63. Also, bearing in mind the degree of proof required having regard to what was said by Dixon J in Briginshaw, as well as s 140 of the Evidence Act, which in essence codifies the Briginshaw principles, caution needs to be exercised to avoid requiring an appellant to achieve a similar high standard merely because the allegation is an extremely serious one.

64. Dixon J said at p361:-

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. 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.

65. It is also helpful to look at some of the things said by Lord Nicholls in the case of In re O (Minors)(Care:Preliminary Hearing) (2003) 2WLR 1075 @ 1080.

Nicholls LJ said:-

“ 11….. Questions of proof of a past event arise in widely varying contexts. Sometimes the law limits the matters the decision maker may take into account. When this occurs, the reason is legal policy, not the requirements of logic. There may, for instance, be a particular category of matters the decision maker is not permitted to consider. The most obvious example concerns criminal trials. In general, evidence of previous misconduct is not admissible in criminal trials. Although such evidence may have probative value, in general it is excluded from consideration by juries because its probative value is outweighed by the risk of prejudice. This exclusionary rule is subject to exceptions in certain types of cases, where the accused should not be permitted to present himself as a person of good character or where the previous misconduct has particular probative value, for instance, as 'similar fact' evidence.

12. The same broad principle is applicable when courts or tribunals peer into the future and assess the likelihood that a particular event will occur. This is an inherently imprecise exercise, so far as human conduct is concerned. In theory it is a different exercise from deciding whether somebody did or did not do something in the past. Whether or not an alleged event occurred in the past raises a question of proof. In truth, the event either happened or not. That is not so with a future forecast. The future has not happened, and future human conduct is never certain. But in practice, the past is often as uncertain as the future. The judge cannot know for certain what happened and can only assess the degree of likelihood that something happened. The same is true of the future. The decision maker has to assess the degree of likelihood that an inherently uncertain event will occur. The degree of likelihood—beyond reasonable doubt, more probable than not, real possibility and so on—required in any particular legal context raises a question of legal policy.

13. Here again, the policy decision on the requisite degree of likelihood is a separate question from the policy decision on the matters the court or tribunal may take into account. As to the latter, the matters a decision maker may take into account are normally bounded only by the need for them to be relevant, that is, they must be such that, to greater or lesser extent, they will assist the decision maker in reaching a rational conclusion. The context may, indeed, require that this principle should apply in its full width: see, in the context of asylum cases and the difficulties of proof which beset asylum seekers, Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449, especially Brooke LJ at 458-470, and Sedley LJ at 477-479. The legal context may permit, or require, the decision maker to take into account a real possibility that a past event occurred, or even a mere possibility. Rationality does not require that only past events established on a balance of probabilities can be taken into account. Or the context may require otherwise. The range of matters the decision maker may take into account when carrying out this exercise depends upon the context. This, again, is a question of legal policy, not logic.” (emphasis added)

CONCLUSION

66. In a case such as this, the grounds for intervention by the Department were made out by the fact of the NG infection in the child which fact, all agree, usually means the child has been sexually interfered with. In the present case, against that prima facie position is firstly, the denial by the father of any such interference and secondly, the presentation of expert evidence that supports the possibility of the infection having occurred without sexual interference.

67. The court, on the evidence cannot say with certainty that sexual interference took place, nor can it say that it did not. That the disease may have been contracted in circumstances that are neither unreal or fanciful, despite being highly improbable, does not mean that in this particular case, having regard to the evidentiary test, the case for intervention has been made out.

68. Applying those standards, in my view, the appeals should be upheld and the orders of the Children’s Court quashed. I make those orders.

69. I wish to thank counsel and their instructing solicitors for the assistance provided in this matter and in the restrained way in which the case was run. Some comments were made as to the actions of DOCS at certain times. I am unable to comment on or determine those issues but this was clearly a case for intervention of some kind and, having regard to the prima facie seriousness of the situation, the intervention needed to be prompt until the situation had been clarified. In that regard it should be remembered that the need for intervention would not have arisen had it not been for the behaviour of the father in the first place.