DW & KW v Dept of Community Services; Re "Sophie" No 2 - [2008] NSWDC 344

No judgment structure available for this case.

CITATION: DW & KW v Dept of Community Services; Re "Sophie" No 2 [2008] NSWDC 344

HEARING DATE(S): 9 December 2008

JUDGMENT DATE:
15 December 2008

JURISDICTION: Civil

JUDGMENT OF: Williams DCJ at 1

DECISION: Appeals on threshold issue dismissed.

CATCHWORDS: CARE PROCEEDINGS - appeal to the District Court - standard of proof on balance of probabilities - degree of standard of proof - serious allegations of sexual misconduct - re-determination following orders of the Court of Appeal

LEGISLATION CITED: Children and Young Persons (Care & Protection) Act 1998

CASES CITED: DW & anor v Dept Community Services and ors [2008] NSWDC 156;
Director General Dept Community Services re;Sophie 2008 NSWCA 250
Neat Holdings P/L v Karajan (1992) 67 ALJR 170
Palmer v Dolman 2005 NSWCA 361
In Re B (Children) (Fc) 2008 UKHL 35
Nguyen v Cosmopolitan Homes 2008 NSWCA 246.
Bradshaw v McEwans Pty Ltd (1951) 217 ALR
SGIC v Laube (1984) 37 SASR 31
Seltsam P/L v McGuiness (2000) 49 NSWLR 262

PARTIES: DW
KW
Dept of Community Services
Sophie

FILE NUMBER(S): 1606/08 ; 1690/08

COUNSEL: Mr I Temby QC and Mr Allen for DOCS
Mr van Kempen for DW
Mrs Stollier for KW
Ms Lawson for Sophie

SOLICITORS: Suppressed in accordance with the Appeal Jdgt

NB: This matter has been appealed. The appeal was dismissed. The judgement is reported at

Re Sophie (No 2) [2009] NSWCA 89.

1 There is a non-publication order in respect of any material that would identify the child the subject of these proceedings.

2 I have retained the nomenclature used by the Court of Appeal. The citation for this judgement should be DW & KW v Director-General (Dept Community Services) Re: “Sophie” No. 2.

3 BACKGROUND

4 This matter has been referred back to me by the Court of Appeal after quashing the orders previously made by me on the hearing of the appeal from the Children’s Court. (cf DW & anor v Dept Community Services and ors [2008] NSWDC 156; Director General Dept Community Services re;Sophie 2008 NSWCA 250). The Court of Appeal held that I had not applied the correct degree of proof as to the balance of probabilities. The Court was also concerned that I had not made any findings as to the father’s denial of any wrong doing nor had I indicated that I was unable to make such a finding either way.

5 With the exception of KW, the parties have been represented by the same counsel who appeared before me and in the Court of Appeal. KW is represented in these renewed proceedings by Ms Stollier. On the basis that KW does not know what happened, Ms Stollier makes no submissions and relies on the submissions made by Mr Anderson before me,

6 It was agreed that the evidence and submissions previously made be taken as the basis of the renewed hearing. Further submissions, both oral and written were made by Mr Temby QC for the Director-General, Mr Wells QC for the father and Ms Lawson for Sophie.

7 The Director General’s case was based on s71(1)(c) of the Children and Young Persons (Care & Protection) Act 1998 which states that a care order may be made if the court is satisfied that the child is in need of care and protection because the child has been, or is likely to be, sexually abused or ill-treated. As I understand Mr Temby’s submissions, there is no issue as the circumstances giving rise to a consideration of the child being “likely to be” sexually abused or ill-treated.

8 PRECEDENT

9 Since the hearing of the appeal before me, I have been made aware of a number of authorities not previously referred to. In particular Neat Holdings P/L v Karajan (1992) 67 ALJR 170 and Palmer v Dolman 2005 NSWCA 361. I have also become aware of the House of Lords decision of In Re B (Children) (Fc) 2008 UKHL 35 and Nguyen v Cosmopolitan Homes 2008 NSWCA 246.

10 In the latter case, McDougall J, in delivering the judgement of the court, said at P55 under the heading “Discharge of the burden of proof: the relevant principles” that:-

“The position may be summarised as follows:

(1) A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;

(2) Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;

(3) Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
(4) A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue”.

11 In the case of In Re B (Children)(Fc) Lord Hoffman said, amongst other things, at paragraphs 2,4 and 5 that :-

4. The question which appears to have given rise to some practical difficulty is the standard of proof in such cases, that is to say, the degree of persuasion which the tribunal must feel before it decides that the fact in issue did happen. Re H (minors) makes it clear that it must apply the ordinary civil standard of proof. It must be satisfied that the occurrence of the fact in question was more likely than not.

5. Some confusion has however been caused by dicta which suggest that the standard of proof may vary with the gravity of the misconduct alleged or even the seriousness of the consequences for the person concerned.

12 Baroness Hale of Richmond, who gave the principal judgement said amongst other things at paragraphs 70, 71 and 72 that:-

71. As to the seriousness of the consequences, they are serious either way. A child may find her relationship with her family seriously disrupted; or she may find herself still at risk of suffering serious harm. A parent may find his relationship with his child seriously disrupted; or he may find himself still at liberty to maltreat this or other children in the future.

72. As to the seriousness of the allegation, there is no logical or necessary connection between seriousness and probability. Some seriously harmful behaviour, such as murder, is sufficiently rare to be inherently improbable in most circumstances. …. Other seriously harmful behaviour, such as alcohol or drug abuse, is regrettably all too common and not at all improbable. Nor are serious allegations made in a vacuum. …

13 In Palmer v Dolman, Ipp JA provided a helpful review of the Australian authorities. Amongst other things, at paragraphs 35 to 47 under the heading “The standard of proof, in a civil case, where fraud is sought to be inferred from circumstantial evidence”, His Honour said as follows:-

Bradshaw v McEwans Pty Ltd

… if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as mere conjecture or surmise

Chamberlain v R (No 2)

“When the evidence is circumstantial, the jury, whether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged …”

39 …, it is sufficient in a civil case that the circumstances raise a more probable inference in favour of what is alleged. …

40 The standard of proof to be applied, together with a non-exhaustive list of “matters” to be taken into account, are now to be found in s 140 of the Evidence Act 1995 (NSW) …
Section 140(1) is reflective of the law as stated in Bradshaw . Section 140(2) provides for no new principle.

The approach, in a civil case, in determining whether circumstantial evidence leads to an inference of fraud

41 … The following are presently pertinent:
(a) The jury must consider “the weight which is to be given to the united force of all the circumstances put together” …
(b) The onus of proof is only to be applied at the final stage of the reasoning process : “[i]t is erroneous to divide the process into stages and, at each stage, apply some particular standard of proof. To do so destroys the integrity of [a] circumstantial case” …
(c) The inference drawn from the proved facts must be weighed against realistic possibilities as distinct from possibilities that might be regarded as fanciful.
(d) Where the competing possibilities are of equal likelihood, or the choice between them can only be resolved by conjecture, the allegation is not proved: Bradshaw .

45 … in Chamberlain v R (No 2) at 536 Gibbs CJ and Mason J said that in a civil case “the circumstances must raise a more probable inference in favour of what is alleged”.

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd

conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct

Evidence Act

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd

14 In “Sophie” the court stated, amongst other things at paragraphs 62 to 68 as follows:

62 … However, when the critical paragraphs are read in the context of the judgment as a whole, it seems that his Honour concluded that the Director-General had not established that sexual abuse had taken place because the hypothesis of non-sexual transmission of NG, although “ highly improbable ” in the circumstances of the case, could not be excluded as a realistic possibility. In other words, since that hypothesis could not be excluded, the Director-General had failed to establish the grave allegation that the father had sexually abused Sophie. Given the way the hearing was conducted (see par 21 above) this was sufficient to warrant allowing the appeal.

64 …his Honour did not correctly apply the standard of proof on the balance of probabilities.

65 Further support for the interpretation I have advanced of the judgment is provided by his Honour’s failure to make any finding about the reliability or otherwise of the father’s denial of wrongdoing. Not only did his Honour refrain from determining whether or not he accepted the father’s evidence, he did not conclude that he was unable to make a finding either way. His Honour simply made no finding at all as to the father’s denial that he had sexually abused Sophie.

66 … If the father’s evidence is to be ignored, the only significant finding suggesting that the father had not abused Sophie relates to the absence of any complaint by her about sexual interference. Yet the judgment specifically accepts that Sophie could have been sexually abused without realising what was happening and that, if that had occurred, it would have been when Sophie and her father were alone.

67 … It was appropriate to take into account the gravity of the allegation of sexual misconduct made against the father, as required by s 140(2) of the Evidence Act. It was not appropriate to find that the Director-General had failed to satisfy the burden of proof on the balance of probabilities simply because his Honour could not exclude a hypothesis that, although consistent with innocence, was “ highly improbable ”. To approach the fact-finding task in that way was to apply a standard of proof higher than the balance of probabilities, even taking into account the gravity of the allegation made against the father.
68 As the High Court pointed out in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd at 171, statements to the effect that clear and cogent proof is necessary where a serious allegation is made are not directed to the standard of proof to be applied, but merely reflect the conventional perception that members of society do not ordinarily engage in serious misconduct and that, accordingly, a finding of such misconduct should not be made lightly. In the end, however, as Ipp JA observed in Dolman v Palmer at [47], the enquiry is simply whether the allegation has been proved on the balance of probabilities.

15 MY PREVIOUS DECISION

16 In DW & KW v Dept Community Services 2008 NSWDC 156 I made the following findings of relevance at the present time.

Bathing:-
43. … 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. …

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. … 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-tenable positions. …
62. … A number of submissions have been made as to the inconceivability of a parent knowingly behaving in the way DW 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.

17 DISCUSSION

18 I wish to make it very clear that I am reconsidering the matter based solely upon the error of law found by the Court of Appeal that my earlier reasoning led me to impose too high a standard of proof on the balance of probabilities. These proceedings were run on the single issue that DW had inappropriate sexual contact with Sophie. I found on the original appeal hearing, the only time Sophie was likely to have contracted the infection was either the 20, 21 or 22 July 2006. This appears to coincide with the only time DW and Sophie were alone together at the Mullumbimby house.

19 The father’s denial of sexual impropriety:-

20 I found that the only scientifically relevant scenario for the non-sexual transmission of the infection was the bathing/towelling scenario and, despite the passage of time no further possible vectors of transmission have been raised other than those litigated. I also found that while the chance of infection occurring within that scenario was remote in all the circumstances, the chance was at least a physical possibility. I appreciate Mr Wells submission in regard to the ball swing being raised by the father because that had been a cause of injury to his daughter in the genital area and could well, thinking back, have become a site for infection.

21 Those propositions, however, also need to be looked at in conjunction with the father’s specific denial of inappropriate behaviour. Had I completely disbelieved the father, I would have dismissed the appeal. I thought it was apparent from my judgement that I did not completely reject the father’s evidence in such a way. However, because I applied an incorrect level of proof to considering the prospect that if he was believed, the medical evidence could not exclude a non-sexual transmission, I did not specifically consider his denial, for the reasons I set out in paragraph 52.

22 However the fact that I did not completely reject the father’s evidence does not mean that his evidence is necessarily to be accepted. Much depends on his credibility as a witness and a consideration of the evidence as a whole. The issue of credibility is not to be judged solely on the issue of character. The evidence I referred to at paragraph 53 of my judgement does not assist in that regard. Many is the time that I have seen such references in criminal cases involving child abuse of varying degrees. Unfortunately that is usually the nature of such offending. Character may have little to do with a witness’s credibility. Credibility comes about from a combination of things that a court must assess, such as accuracy, consistency, reliability, logicality and believability. Credibility can often only be properly assessed when all the evidence is in, so that the tribunal can compare other witnesses and other evidence. As to truthfulness, this is often difficult to assess except in the most obvious cases. One reason for that is that people who come to believe in facts that are incorrect can tend to be plausible witnesses, witnesses who are honest but not correct. In determining the value to be placed on the father’s evidence, one needs to be cautious not to confuse matters affecting character with matters affecting credibility, although there may be some overlap in particular instances.

23 It is also important to place the scientific evidence in regard to N. gonorrheae (NG) and my findings in that regard in context. They appear at page 5 of my judgement.

24 NG survives and infects a person by attaching itself to and remaining on a mucosal surface. Not all mucosal surfaces are suitable but in pre pubertal girls, the genital mucosal surfaces forward of the hymen are more susceptible than others. Further the gonococcus does not survive well outside a moist environment or a higher than body temperature heat. I also found that if the right conditions existed then NG can be transmitted from one person to another without sexual contact.

25 Accepting it was normal for the father and Sophie to bathe together and, that in accordance with Japanese tradition, the bathing would occur in a relatively hot and humid location, NG infection would require, in the present case, for an amount of viable NG to be discharged from the urethra and be attached to a towel, presumably by the father drying himself. Sufficient amount of the live discharge would then have to be deposited on Sophie’s mucosal genitalia also, presumably, by the father drying her, and then survive.

24 This would be at a point in time where both had just been bathing in a bathtub and then showering, so that I would presume that the amount of any discharge on the father’s penis would probably not be substantial. This circumstance also has to be considered having regard to the size and constituency of an average towel and the way people normally dry themselves and parents dry their children. As far as the present case is concerned, the father was conscious that he had a discharge and did not want to pass it on to other members of the household, by taking precautions such as, for example, using separate towels and washing his own linen. In evidence, the father said that although his wife usually dried Sophie, when he did dried her he tended to concentrate on drying her first, starting with her hair, and then drying himself (T21/05/08P32.19-26; T21/05/08P62.0-14). This was because of a Japanese tradition in regard to drying the hair first. He was also asked in chief, specifically in relation to Mullumbimby, was it ever necessary for him to use the towel on himself before towelling Sophie. He replied “Apart from sometimes, I remember using a towel just to towel my eyes, I had a particular little quirk where if I get water round there I don’t like the feeling, you know, like some water, so I might just dab that area but apart from that, no.” (T21/05/08P33.46-50 & P34.0-11).

25 Contrary to the expert evidence of Professor Hammerschlag, I found that NG could be transmitted if a sufficient viable amount of inoculum was on the towel in a warm moist environment and that inoculum was transferred to the daughter’s mucosal genitalia and survived there. However I also found that “the chances of that occurring were remote” having regard to the circumstances, some of which I have referred to in greater detail above. I rated that chance as being “highly improbable” albeit a “realistic possibility”. The Court of Appeal has said that in requiring the Director to effectively negative such a chance occurring was setting the degree of proof on the balance of probabilities too high and I was in error.

28 Having re-read and reconsidered the evidence of the father and having regard to the evidence referred to above I would have to say that the prospect of infection by the only realistic remaining methodology, would have to be extremely improbable in the particular circumstances even if, as was suggested, the father would sometimes carry the child from the bathroom to the bedroom with the same towel wrapped around her. (T21/05/08P34&35).

29 One of the problems with the evidence lies in the way in which this case was run. Rather than hear from the lay witnesses first and then move to the experts, the opposite occurred so that the experts were unable to consider their conclusions in the light of, in particular, the father’s evidence. As events turned out, it was not really necessary to conduct the case in that way but that is what happened. In my view, having regard to the experts views of the various scenarios, the chances of Sophie being infected through bathing or towelling becomes speculative.

30 A number of submissions made reference to “statistical” evidence. As I indicated at paragraph 6 of my judgement, the problem cannot be solved statistically. In any event statistics need to be looked at in the light of the other evidence and are but part of the general circumstances. That seems to be in keeping with what was said in SGIC v Laube (1984) 37 SASR 31 and Seltsam P/L v McGuiness (2000) 49 NSWLR 262. Mr Wells in his submissions made reference to what Spigelman CJ said in the latter case at paragraphs78 and 79. His Honours also concluded in the last sentence of paragraph 79 that “where, however, the whole of the evidence does not rise above the level of a possibility, either alone or cumulatively, such an inference is not open to be drawn.” In par 80 he continued “The common law test of balance of probabilities is not satisfied by evidence which fails to do more than establish a possibility”.

31 However the medical evidence is more than just a statistical analysis. It establishes that NG is infectious and that it is passed from one person to another by sexual means. It also establishes that there are some rare circumstances where the transference can be a non-sexual one. In the present case the clear and unambiguous facts are that the father had the infection and that it was he and he alone who passed it on to his daughter. There are no other vectors of infection to be considered. The issue is was the daughter’s infection transmitted sexually or non-sexually. The only scenario that I have found that offers a realistic possibility of such transference is the bath towel but that the chances of that occurring in that situation are remote and highly improbable – indeed extremely so.

32 As well, t the very least, the father knew all the physical circumstances of his infection, whether or not he knew for certain, as at 19 July, that his problem was an STD/STI. Those circumstances were unprotected sex with a Bali prostitute on 16 July and a discharge from his urethra shortly after. It is difficult in that regard to accept his evidence that he thought he may have had a urinary tract infection (UTI) similar to some previous such complaint. He said he noticed a dried substance on his underwear and a burning sensation while urinating, which was about 21 July, and although he had no view as to what it was, decided to wash his underwear himself rather than have them washed by his wife as usually happened. Later he noticed dampness as well as dryness. He thought it could be some kind of infection such as a UTI but “there was also another thought there of a connection to what I had done in Bali”.

33 Whilst I agree that the time of Sophie’s infection cannot be precisely determined, more probably than not, it occurred during the “window” period of 20, 21 or 22 July. I am unable to find that there was a deliberate attempt at least by the father, to avoid Sophie being examined by a medical practitioner given the families preference for, at first instance, traditional remedies. However I have questioned the appropriateness of that course in the circumstances. There is also a dichotomy in the father’s evidence of trying to avoid infection on the one hand and, on the other, as the Director would have, engaging in conduct fraught with the very risk he was seeking to avoid. However this is but an extension of the serious consideration that needs to be given to such allegations in a civil case, recognising that in the nature of human behaviour all things are possible.

34 Of course the responsibility of establishing a reason for intervention lies on the Director–General. As I stated in my judgement, the grounds for that intervention were made out by the fact of Sophie’s infection, the fact that the father was the source of that infection and the fact that the most probable way in which such an infection occurred was by sexual contact. The expert evidence has not changed that situation even having regard to the bathing/towelling scenario.

35 Against that I have the father’s denial of sexually inappropriate conduct, the lack of any objective finding of sexual interference in a physical sense and the lack of any complaint by Sophie of any unusual or inappropriate behaviour. I have already dealt with the latter two propositions in my previous judgement. Complaint in such circumstances is very dependent on the age and understanding of the child and the nature of the physical interference. The fact that I have found that the infection probably occurred when the father was alone with his daughter, the fact that I have found that it is extremely improbable that the daughter was infected by the mechanism of towelling and the fact of the delay in adequately seeking medical treatment are matters I have also taken into account as well as my comments as to the father’s demeanour, subject to the qualifications I expressed on that subject in my judgement. However as I also stated, there were other aspects of the father’s evidence that made it difficult to feel comfortably satisfied with what he was saying. At time his evidence did not carry conviction, he talked around the subject without coming to the point and he was hesitant in answering questions that would tend to place him in an untenable position. A video was tendered of him interacting with Sophie at different times. This was done for the purpose of showing their loving and caring relationship but in my view, unfavourable aspects of his demeanour in the witness box were also evident in this video. However the video is not of great weight in the scheme of things.

36 Mr Wells raised a “presumption of innocence” concept akin to the criminal law that presumably should operate in favour of the father. Without going down that path I take this to really refer to the concept expressed in many cases commencing with Briginshaw, that serious allegations of impropriety need to be looked at having regard to the fact that such behaviour is not common within the community. I think I have already commented on that proposition and referred to the legal principles to be applied in the case extracts above.

37 In my view, the fathers evidence was not such that I could, without hesitation, accept it as correct on the ultimate issue, having regard to all the circumstances. Once the Director-General has established a case on the balance of probabilities, the responsibility of proving otherwise shifts to, in this case, the father. In the particular circumstances here, I do not accept on the balance of probabilities that Sophie’s infection was caused in any of the ways advanced in the father’s case. That leaves a denial that is compromised by the factors referred to above.

38 RESOLUTION

39 Having regard to the above authorities, I accept that proof of the contention is on a simple balance of probabilities having regard to the provisions of s140 of the NSW Evidence Act as commented on by Ipp JA in Palmer v Dolman at par 40. For the Department to succeed I have to find as a fact, on the balance of probabilities, that Sophie’s infection was occasioned by sexual contact of some kind. This is a circumstantial case and as such “it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found.” (Nguyen). Further, “there are no hard and fast rules by which serious allegations might be proved from circumstantial evidence. The inquiry is simply, has the allegation been proved on a balance of probabilities, taking due account of what was said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd.” (Palmer)

40. Lord Hoffman said, in the English case referred to above, that “If a legal rule requires a fact to be proved (a “fact in issue”), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened”. This is important in considering the submission that the court can come to three conclusions. Namely, that the contention has been proved or that the contention has not been proved or that the court just “does not know”. As Lord Hoffman said, in court proceedings facts are either established or not and where there is a doubt, the requirement of proof cast on a party means they either prove their contention or they don’t and if the contention is proved the fact is regarded as having happened but if it is not proved, then the contention did not happen. If the court is unable to say one way or the other, then the contention has not been proved and is therefore deemed not to have happened.

41 In the judgement of Sackville AJA at para 21 His Honour said “The sole factual issue addressed by the primary Judge in his judgment was whether Sophie had contracted NG as a consequence of sexual misconduct by the father. The answer to this factual question seems to have been regarded by the parties as determinative of the District Court appeal. The primary Judge, presumably because he was not invited to do so, did not consider by reference to M v M whether Sophie should be regarded as “likely to be …sexually abused” for the purposes of s 71(1)(c) of the Care Act, even if the Court was unable to determine whether the father had in fact sexually abused Sophie”. M v M was a family law case involving a custody issue where allegations of sexual impropriety had been made. I suppose it is possible that if I was unable to determine whether or not Sophie’s infection was caused by sexual contact, I could perhaps consider the second limb of s71(1)(c) as to whether the child is likely to be sexually abused or ill-treated. However that consideration would only apply, it seems to me, if I also was satisfied no other vector of infection, other than a sexual transmission, was possible in all the established circumstances. On the balance of probabilities I would be so satisfied.

42 However it is conceded by Mr Temby QC for the Director General that if I accept the father’s denial, then the appeal succeeds and there is no room for any further inquiry to ascertain if Sophie is likely to be sexually abused. Apart from anything else, there is no evidence that would suggest that there is anyone else in Sophie’s family who is likely to have interfered with her in any way. Mr Wells submitted that there are House of Lords authorities that establish that in the absence of a finding of fact on the balance of probabilities as to a past relevant event, there is no basis for coming to a view about future likelihood, even if the word "likelihood" there has a softer meaning of “real possibility”. (cf. In re H 1996 AC 563; In re O 2004 1AC 523; and In re B 2008 3WLR 1). Ms Lawson for Sophie has submitted at par 16 of her submissions that even if I am not satisfied on the balance of probabilities that the father had inappropriate sexual contact with Sophie I should determine the likelihood of her being sexually abused or ill-treated. I have already referred to this point in the preceding paragraph.

43 At para 68 in “Sophie” Sackville AJA said that “statements to the effect that clear and cogent proof is necessary where a serious allegation is made are not directed to the standard of proof to be applied, but merely reflect the conventional perception that members of society do not ordinarily engage in serious misconduct and that, accordingly, a finding of such misconduct should not be made lightly.” The expression “lightly” I take to mean that such findings should not be made on the basis of “inexact proofs, indefinite testimony or indirect inferences”, (see Dixon J in Briginshaw @ 361) unchallenged and erroneous circumstances or as a statistical probability. (see Spigelman CJ in Seltsam).

44 In Bradshaw (Bradshaw v McEwans Pty Ltd) the court said “you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough in the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture..” (More importantly) .. if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as mere conjecture or surmise …”

45 The Department has established beyond any doubt that the most probable vector of infection for NG is via sexual transmission. I accept that the defence has established that there physical ways, held to be remote in the circumstances, that the infection could have been caused non-sexually and the father has denied, on oath, any sexual interference. On the balance of probabilities, and having regard to the matters referred to above, I do not accept that any of the ways or means suggested by the father as a cause of Sophie’s infection have been realistically established and the overwhelming evidence, on the balance of probabilities, is that the infection did occur through sexual contact.

46 Given that NG is usually transmitted sexually and given the fact that non-sexual infection via the bathroom scenario was, although scientifically possible, extremely remote in the circumstances, I find on the balance of probabilities that there being no other relevant means of a non-sexual cause of the infection being established and there being no other person capable of causing the infection, the cause of Sophie’s infection was through inappropriate sexual contact by the father.

48 In those circumstances I find that Sophie is in need of care and protection because she has been sexually abused.

49 The Director- General has therefore established the ground set out in s71(1)(c). The appeals in regard to the threshold issue are therefore dismissed.

J S Williams

Judge

15 December 2008.

Actions

Download as PDF Download as Word Document

Citations

DW & KW v Dept of Community Services; Re "Sophie" No 2 [2008] NSWDC 344

Cases Citing This Decision

0

Cases Cited

6

Statutory Material Cited

1

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

Brown v The The Queen [2022] NSWCCA 116

CITATION:	DW & KW v Dept of Community Services; Re "Sophie" No 2 [2008] NSWDC 344
HEARING DATE(S):	9 December 2008
JUDGMENT DATE:	15 December 2008
JURISDICTION:	Civil
JUDGMENT OF:	Williams DCJ at 1
DECISION:	Appeals on threshold issue dismissed.
CATCHWORDS:	CARE PROCEEDINGS - appeal to the District Court - standard of proof on balance of probabilities - degree of standard of proof - serious allegations of sexual misconduct - re-determination following orders of the Court of Appeal
LEGISLATION CITED:	Children and Young Persons (Care & Protection) Act 1998
CASES CITED:	DW & anor v Dept Community Services and ors [2008] NSWDC 156; Director General Dept Community Services re;Sophie 2008 NSWCA 250 Neat Holdings P/L v Karajan (1992) 67 ALJR 170 Palmer v Dolman 2005 NSWCA 361 In Re B (Children) (Fc) 2008 UKHL 35 Nguyen v Cosmopolitan Homes 2008 NSWCA 246. Bradshaw v McEwans Pty Ltd (1951) 217 ALR SGIC v Laube (1984) 37 SASR 31 Seltsam P/L v McGuiness (2000) 49 NSWLR 262
PARTIES:	DW KW Dept of Community Services Sophie
FILE NUMBER(S):	1606/08 ; 1690/08
COUNSEL:	Mr I Temby QC and Mr Allen for DOCS Mr van Kempen for DW Mrs Stollier for KW Ms Lawson for Sophie
SOLICITORS:	Suppressed in accordance with the Appeal Jdgt