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

Reported Decision : 7 DCLR (NSW) 144

New South Wales 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

Briginshaw 1938 60 CLR 336; 1938 HCA 34 CASES CITED: 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

DW PARTIES: KW Department of Community Services MW

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

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

Stephen Bottrill Solicitors & Attorneys SOLICITORS: 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: