CITATION: Director General of Department of Community Services; Re Sophie [2008] NSWCA 250
FILE NUMBER(S): 40227/08
HEARING DATE(S): 2 October 2008
JUDGMENT DATE: 15 October 2008
PARTIES: Director General of Department of Community Services DW KW "Sophie"
JUDGMENT OF: Giles JA Handley AJA Sackville AJA
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 1606/08; DC 1690/08
LOWER COURT JUDICIAL OFFICER: Williams DCJ
LOWER COURT DATE OF DECISION: 30 May 2008
COUNSEL: Pl: I Temby QC / T Allen 1Def: W J N Wells QC 2Def: M W Anderson 3Def: E Lawson
SOLICITORS: Pl: I V Knight 1Def: Stephen Bottrill Solicitors, Byron Bay 2Def: Belinda Eyers & Assocites, Brunswick Heads 3Def: Darnell & Associates, Alstonville
CATCHWORDS: APPEAL - Appeal from decision of District Court which allowed an appeal from a care and protection order made by the Children’s Court under s 71 (1) (c) of the Children and Young Persons (Care and Protection) Act 1998 (“Care Act”) RELIEF - Application for relief in that nature of certiorari under s 69 of the Supreme Court Act 1970 EVIDENCE - Burden of proof – Allegation that father had sexually abused five year old daughter – whether trial judge correctly applied standard of proof – application of s 140 (2)(c) of the Evidence Act 1995 – whether matter should be remitted to the District Court
The record of the District Court proceedings in Matter No. 1606/08 be removed into this Court.
The orders made by the primary Judge be quashed.
The proceedings be remitted to the District Court to be heard and determined according to law.
The parties file within 7 days agreed minutes of order relating to the costs of the proceeding in this Court and in the District Court.
If no agreement can be reached, the Director-General should file written submissions as to costs within 7 days and the respondents (including Sophie) should respond in writing within a further 7 days.
JUDGMENT:
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA 40227/08 DC 1606/08 DC 1690/08
GILES JA HANDLEY AJA SACKVILLE AJA
Wednesday 15 October 20080
DIRECTOR-GENERAL DEPARTMENT OF COMMUNITY SERVICES; RE SOPHIE
Judgment
GILES JA: I agree with Sackville AJA.
HANDLEY AJA: I agree with Sackville AJA.
SACKVILLE AJA: These proceedings have been brought by the…
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.
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AGLC
Re Sophie [2008] NSWCA 250
Case
[2008] NSWCA 250
Decision Date
CaseChat Overview and Summary
This matter concerned an appeal to the Supreme Court of New South Wales from a decision of the District Court, which had itself allowed an appeal from a care and protection order made by the Children's Court. The Director-General of the Department of Community Services sought relief in the nature of certiorari. The central dispute involved an allegation that the father had sexually abused his five-year-old daughter, Sophie, leading to her infection with NG.
The Supreme Court was required to determine whether the primary Judge in the District Court had correctly applied the standard of proof, specifically in relation to section 140(2)(c) of the Evidence Act 1995, when considering the allegation of sexual abuse. The court also had to consider whether the matter should be remitted back to the District Court for redetermination. The primary Judge had accepted that NG could be transmitted without sexual contact if viable inoculum was transferred to a mucosal surface, and had found that the father was the source of Sophie's infection, having contracted NG from unprotected sexual intercourse during a trip to Bali.
The Supreme Court found that the primary Judge's reasoning and expression of conclusions were unclear, leading to debate. While the primary Judge had quashed the orders of the Children's Court, the Supreme Court determined that the proceedings should be remitted to the District Court for a fresh hearing and determination according to law. The court also made orders regarding the filing of agreed minutes concerning the costs of the proceedings in both the Supreme Court and the District Court, with provision for written submissions if agreement could not be reached.
Orders
Orders of the court
1. The record of the District Court proceedings in Matter No. 1606/08 be removed into this Court. 2. The orders made by the primary Judge be quashed. 3. The proceedings be remitted to the District Court to be heard and determined according to law. 4. The parties file within 7 days agreed minutes of order relating to the costs of the proceeding in this Court and in the District Court. 5. If no agreement can be reached, the Director-General should file written submissions as to costs within 7 days and the respondents (including Sophie) should respond in writing within a further 7 days.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The way in which the primary Judge expressed his conclusions in his judgment gave rise to much debate in this Court and it will be necessary to scrutinise his reasons closely. At this stage it is enough to note that he upheld the appeal and “quashed” the orders of the Children’s Court.The primary judgment The learned primary Judge recorded that there was no dispute that the father had been the source of the infection of the child. Instead the factual dispute related to the manner in which that infection had occurred. The Director-General had contended that the most probable cause was sexually intimate behaviour between the father and Sophie. The father denied any such conduct and advanced four possible alternative means by which the infection may have been innocently transmitted to Sophie. His Honour identified these as the following:·Sophie’s use of a contaminated swing;·Sophie and her father sharing the same sleeping arrangements in accordance the family’s cultural traditions;·Sophie and her father bathing together; and·Sophie sharing the same towel with her father. The primary Judge described NG as follows:“an organism that exists in warm moist conditions and causes physical reactions in its host. It is regarded as a Sexually Transmitted Disease …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. …NG is readily treatable with antibiotics.It has an incubation period of about 2-5 days. Symptoms in a male can be a 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 which it is being carried dries out. NG survives and infects a person by attaching itself to and remaining on a mucosal surface [such as the female genitalia]. …In pre-pubertal girls, the mucosa 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”. While the experts differed in their opinions as to the likelihood of non-sexual transmission of NG, the primary Judge accepted:“on the balance of probabilities, that if the right conditions exist, NG can infect a person without [there] necessarily being some form of sexual contact. Those conditions are the transfer of viable inoculum by any means to a mucosal surface”. The primary Judge found that the father returned to Australia from a trip to Bali on 19 July 2006. During that visit on 16 July 2006, he had unprotected sexual intercourse with a prostitute. For some time after his return, the father and mother did not have sexual intercourse. This was not because the father thought he had a contagious disease, but because of a degree of strain in the marital relationship. His Honour found that the mother had noticed a discharge on her daughter on 25 July 2006. Given the accepted incubation period of 2 to 5 days, this meant that Sophie was infected somewhere between 19 and 22 July 2006. The father did not notice his own discharge until 20 or 21 July 2006. His Honour therefore found that the window of “opportunity” for Sophie to be infected was the short period between 20 and 22 July 2006.