Re Sophie (No 2) [2009] NSWCA 89

New South Wales Court of Appeal

CITATION: Re Sophie (No 2) [2009] NSWCA 89

HEARING DATE(S): 9 April 2009

JUDGMENT DATE: 1 May 2009

JUDGMENT OF: Giles JA at 1; Tobias JA at 15; Basten JA at 82

DECISION: Summons dismissed with no order as to costs

CATCHWORDS: FAMILY LAW AND CHILD WELFARE – Child welfare under State legislation – Children in need of protection – Proceedings relating to care and protection – Whether child in need of care and protection – Child infected with sexually transmitted disease – Whether child had been sexually abused – Evidence and proof – onus of proof – Whether trial judge failed to place the onus of proving sexual abuse on the balance of probabilities on the Director-General - ADMINISTRATIVE LAW – Prerogative writs and orders – Certiorari – Grounds for certiorari to quash – Error on the face of the record

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

Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 32 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Craig v South Australia [1995] HCA 58; 184 CLR 163 Director General of Department of Community Services; Re Sophie [2008] NSWCA 250 DW v Department of Community Services [2008] NSWDC 156; 7 DCLR (NSW) 144 CASES CITED: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Nguyen v Cosmopolitan Homes [2008] NSWCA 246 Palmer v Dolman [2005] NSWCA 361 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 Re B (Children) [2008] 3 WLR 1; [2008] 4 All ER 1 Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547