Re Sophie

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.