Director General of Department of Community Services; Re Sophie [2008] NSWCA 250

New South Wales Court of Appeal

CITATION: Director General of Department of Community Services; Re Sophie [2008] NSWCA 250

HEARING DATE(S): 2 October 2008

JUDGMENT DATE: 15 October 2008

JUDGMENT OF: Giles JA at 1; Handley AJA at 2; Sackville AJA at 3

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. DECISION: 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.

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

Civil Procedure Act 2005 (NSW) LEGISLATION CITED: Evidence Act 1995 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Supreme Court Act 1970 (NSW)