Re Sophie (No 2) [2009] NSWCA 89 (1 May 2009)

Last Updated: 4 May 2009

NEW SOUTH WALES COURT OF APPEAL

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


FILE NUMBER(S):
40058/09

HEARING DATE(S):
9 April 2009

JUDGMENT DATE:
1 May 2009

PARTIES:
Director General of Department of Community Services
The father of Sophie
The mother of Sophie
Sophie

JUDGMENT OF:
Giles JA Tobias JA Basten JA

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

LOWER COURT MEDIUM NEUTRAL CITATION:
DW & anor v Dept Community Services and ors [2008] NSWDC 156

COUNSEL:
A. J Wells QC
1R. T Allen
2R. M Anderson
3R. E Lawson

SOLICITORS:
A. Suppressed by the Court
1R. Suppressed by the Court
2R. Suppressed by the Court
3R. Suppressed by the Court

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

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


CASES CITED:
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
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] UKHL 35; [2008] 3 WLR 1; [2008] 4 All ER 1
Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547

TEXTS CITED:


DECISION:
Summons dismissed with no order as to costs

PUBLICATION RESTRICTION:
Suppression of the parties' details. Suppression of details of solicitors acting for parties.


JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40058/09

DC 1606/08

DC 1690/08

GILES JA

TOBIAS JA

BASTEN JA

Friday 1 May 2009

RE SOPHIE (NO. 2)

NOTE: The Court made the following order on 9 April 2009: Access to the file in this Court including the summons dated 13 February 2009 is prohibited except with leave of a judge of this Court.

Reasons for judgment

1 GILES JA: At the conclusion of the hearing the Court ordered that the summons be dismissed with no order as to costs, with reasons to be given at a later date. These are my reasons for joining in the orders.

2 The history of the application for a care order under the Children and Young Persons (Care and Protection) Act 1998 (“the Act”) in respect of Sophie is described in the reasons of Tobias JA, which I have read in draft. The question in the father’s application for relief in this Court was whether the reasons of Williams DCJ published on 15 December 2008 (including such parts of his Honour’s earlier reasons as were taken up), by s 69(4) of the Supreme Court Act 1970 as part of the record, revealed error of law on the face of the record. The error asserted was that the judge reversed the burden of proof: that instead of a burden of proving sexual abuse by the father resting upon the Director-General, his Honour placed upon the father the burden of proving that he did not sexually abuse Sophie.

3 In the reasons of Basten JA, which I have also read in draft, it is suggested that there may not have been a burden of proof on either the Director-General or the father. None of the father, the Director-General, the mother and counsel for Sophie so submitted, and the Director-General’s submissions proceeded on the basis that he had the burden of proving sexual abuse of Sophie by the father. References in s 93(4) and (5) of the Act to the standard of proof on the balance of probabilities and satisfaction on the balance of probabilities suggest that there is a burden of proof, where application is made for a care, order one resting on the Director-General as the applicant. I would not wish to cast doubt on that without a submission to the contrary and proper argument.

4 As appears from the reasons of Tobias JA, the father submitted that the error of law was revealed in [37] and [45] (with which [46] should be read) of the judge’s reasons. In this Court’s decision in Director-General of Department of Community Services; re Sophie [2008] NSWCA 250 (“re Sophie (No 1)”) it was said that his Honour’s reasons had to be read as a whole, and not “with an eye finely attuned to error” (at [53], [54]). That was accepted in the present case.

5 The paragraphs on which the father relied were of course part only of the judge’s reasons. The reasons were replete with discussion of proof on the balance of probabilities, perhaps understandably when this Court had held in re Sophie (No 1) that the judge had applied a standard of proof higher than the balance of probabilities. The discussion was plainly on the basis that the Director-General bore the burden of proof on the balance of probabilities, and included at [14] citation of paras [62] and [67] from re Sophie (No 1) referring to whether the Director-General had established that sexual abuse had taken place and to the Director-General’s burden of proof on the balance of probabilities.

6 The judge further recognised that the Director-General bore the burden of proof at [39], where he said that for the Department to succeed he had to find as a fact, on the balance of probabilities, that Sophie’s infection was occasioned by sexual contact of some kind and that the inquiry was whether the allegation had been proved on a balance of probabilities; and again (and definitively) at [49], where he stated his ultimate conclusion in the terms, “The Director-General has therefore established the ground set out in s 71(1)(c) [of the Act].”

7 The father submitted that where the judge said at [34] that “the responsibility of establishing a reason for intervention lies on the Director-General”, his Honour was referring to reason for applying for a care order as distinct from reason for a care order being made. Tobias JA is inclined to agree, but I respectfully incline to the contrary. I consider that the better view is that this was an infelicitously expressed recognition of the Director-General’s burden of proof. However, I do not think it matters which understanding of this paragraph is correct.

8 The paragraphs on which the father relied have to be read in the context provided by recognition that it was for the Director-General to prove on the balance of probabilities that the father had sexually abused Sophie. They are set out in the other reasons, but for convenience I repeat para [37] and paras [45]-[46]:

“37 In my view, the fathers evidence [sic] was not such that I could, without hesitation, accept it as correct on the ultimate issue, having regard to all the circumstances. Once the Director-General has established a case on the balance of probabilities, the responsibility of proving otherwise shifts to, in this case, the father. In the particular circumstances here, I do not accept on the balance of probabilities that Sophie’s infection was caused in any of the ways advanced in the father’s case. That leaves a denial that is compromised by the factors referred to above.”

“45. The Department has established beyond any doubt that the most probable vector of infection for NG is via sexual transmission. I accept that the defence has established that there physical ways, held to be remote in the circumstances, that the infection could have been caused non-sexually and the father has denied, on oath, any sexual interference. On the balance of probabilities, and having regard to the matters referred to above, I do not accept that any of the ways or means suggested by the father as a cause of Sophie’s infection have been realistically established and the overwhelming evidence, on the balance of probabilities, is that the infection did occur through sexual contact.

46. Given that NG is usually transmitted sexually and given the fact that non-sexual infection via the bathroom scenario was, although scientifically possible, extremely remote in the circumstances, I find on the balance of probabilities that there being no other relevant means of a non-sexual cause of the infection being established and there being no other person capable of causing the infection, the cause of Sophie’s infection was through inappropriate sexual contact by the father.”

9 Together with my brethren, I accept that the paragraphs were not well expressed. But I do not think that the judge reversed the burden of proof.

10 Paragraph [37] was the conclusion of a discussion which, while going further, was essentially directed to the father’s denial of sexual impropriety (that being a sub-heading under which the discussion took place). In re Sophie No 1 it had been noted at [65] that the judge had made no finding as to the father’s denial that he had sexually abused Sophie, and the first sentence of [37] was plainly enough intended to be such a finding. The paragraph as a whole brought into the juge’s determination his assessment of the weight to be given to the father’s denial.

11 Although using the unfortunate language that responsibility for proving that Sophie’s infection was caused in one of the ways advanced in the father’s case shifted to the father, in my view the judge should be understood as expressing a process of reasoning. The weight of the Director-General’s case, one sufficient to make out sexual abuse by the father on the balance of probabilities, had to be taken together with the weight of the case for alternative means of infection, one which the judge did not think achieved satisfaction on the balance of probabilities, and the father’s denial. I do not think that the judge meant any more than that the weight of the Director-General’s case was such that sexual abuse by the father would be made out by the Director-General unless, as a practical matter, the father’s case for alternative means of infection and his denial had substance. This was a permissible process of reasoning, and left the legal burden of proof on the Director-General.

12 Paragraph 45 should be similarly understood. The most probable vector of infection for NG via sexual transmission being beyond any doubt, the Director-General’s case for such transmission to Sophie was of considerable weight. To be balanced against that were the remotely possible means of non-sexual transmission and the father’s denial. The reference to the alternative means of transmission not having been “realistically established” did not place a burden on the father to disprove sexual abuse of Sophie. It was a statement of the little weight to be given to the case for the alternative means of transmission.

13 Reading the paragraphs as part of the reasons as a whole, in my opinion the judge came to his determination on the basis that the Director-General bore the burden of proof of sexual abuse of Sophie by the father, and did not in the paragraphs in question place the burden of disproof on the father.

14 I respectfully adopt Tobias JA’s reasons on the question of costs.

15 TOBIAS JA: By summons filed in the original jurisdiction of this Court on 20 February 2009 the applicant, the father of the child referred to in the proceedings by the pseudonym “Sophie”, seeks an order in the nature of certiorari pursuant to s 69 of the Supreme Court Act 1970 quashing orders made by his Honour Judge Williams of the District Court on 15 December 2008 upon the ground of an error of law on the face of the record.

16 The proceedings were heard on 9 April last as an expedited matter and at the end of the oral argument the Court ordered that the summons be dismissed and that there be no order as to costs. The Court indicated that it would publish its reasons for the making of those orders as soon as practicable. My reasons for so joining in those orders now follow.

The history of the litigation

17 The litigation the subject of the present summons has had a chequered history. It commenced in the Children’s Court pursuant to proceedings instituted by the Department of Community Services (DOCS) pursuant to s 71(1)(c) of the Children and Young Persons (Care and Protection) Act 1998 (the Care Act). DOCS was prompted to make the care application to the Children’s Court because Sophie, who was five years old at the time the application was made, had been diagnosed with Neisseria Gonorrhoea (“NG”).

18 It was common ground at the hearing before the Children’s Court that the father had contracted NG from a prostitute in Bali and that he was the source of Sophie’s infection. Although the father was charged with a serious indictable offence concerning alleged sexual misbehaviour towards Sophie that caused the infection, that charge was ultimately withdrawn.

19 Nevertheless, notwithstanding the father’s denial of any wrongdoing and his offer of several alternative hypotheses as to how Sophie might have contracted NG without sexual misconduct on his part, ultimately the magistrate, without making any finding that the father had sexually abused Sophie, concluded that contact with him posed an unacceptable risk “in terms of her sexual safety and of her emotional wellbeing”. His Honour therefore ordered that Sophie be placed under the parental responsibility of the Minister until she reached the age of 18 years; that responsibility for the preservation of her culture be allocated to her mother and that her father be prohibited from having any contact with the child until her 18th birthday.

20 Both Sophie’s father and mother appealed to the District Court. On 30 May 2008 his Honour Judge Williams upheld the appeals and “quashed” the orders of the Children’s Court. However, the matter was litigated before his Honour on a different basis to that adopted in DOCS’ care application before the Children’s Court. In particular, the primary issue addressed before the District Court was whether Sophie had contracted NG as a consequence of being sexually abused by her father within the meaning of s 71(1)(c) of the Care Act.

21 Given the nature of the issue so presented before his Honour, a great deal of medical evidence was elicited which established, according to his Honour’s findings, that although the most likely source of Sophie’s infection was as a consequence of her having been sexually assaulted by her father, nevertheless the expert evidence established the possibility of infection having occurred without sexual interference. Four such scenarios were advanced by Sophie’s parents, of which only one was considered by his Honour as being “a realistic possibility”.

22 The primary judge’s conclusion was stated in the following terms:

“66. In a case such as this, the grounds for intervention by the Department were made out by the fact of the NG infection in the child which fact, all agree, usually means the child has been sexually interfered with. In the present case, against that prima facie position is firstly, the denial by the father of any such interference and secondly, the presentation of expert evidence that supports the possibility of the infection having occurred without sexual interference.

67. The court, on the evidence cannot say with certainty that sexual interference took place, nor can it say that it did not. That the disease may have been contracted in circumstances that are neither unreal or fanciful, despite being highly improbable, does not mean that in this particular case, having regard to the evidentiary test, the case for intervention has been made out.

68. Applying those standards, in my view, the appeals should be upheld and the orders of the Children’s Court quashed. I make those orders.”

23 There being no right of appeal to this Court from a decision of the District Court quashing orders made by the Children’s Court, the Director-General of DOCS filed a summons in the original jurisdiction of this Court seeking an order in the nature of certiorari pursuant to s 69 of the Supreme Court Act 1970 that the orders made by Judge Williams on 30 May 2008 be quashed.

24 The basis of the Director-General’s challenge was that [66]–[67] of the primary judge’s judgment (the first judgment) revealed legal error in that although his Honour accurately stated the principles governing the burden of proof, he failed to apply them correctly.

25 In this Court Sackville AJA, with the concurrence of Giles JA and Handley AJA, concluded (at [67]) that

“[i]t was not appropriate [for his Honour] to find that the Director-General had failed to satisfy the burden of proof on the balance of probabilities simply because his Honour could not exclude a hypothesis that, although consistent with innocence, was ‘highly improbable”. To approach the fact-finding task in that way was to apply a standard of proof higher than the balance of probabilities, even taking into account the gravity of the allegation made against the father.”

26 Accordingly, the Court quashed the orders of Judge Williams made on 30 May 2008 and ordered that the proceedings be remitted to the District Court to be re-heard and determined according to law: Director-General of Department of Community Services; Re Sophie [2008] NSWCA 250 (Sophie (No 1)).

27 The remitted proceedings were heard by the primary judge on 9 December 2008, his Honour delivering judgment on 15 December 2008 (the second judgment). His Honour found that the Director-General had established the ground set out in s 71(1)(c) and therefore ordered that the appeals of Sophie’s father and mother, on what he referred to as the “threshold issue”, be dismissed. That issue was whether, on the balance of probabilities, Sophie had contracted NG as a consequence of having been sexually abused by her father within the meaning of s 71(1)(c). Once that finding was made the Director-General was entitled to a “care order” which is defined by s 60 of the Care Act to mean an order under Chapter 5 of the Act with respect to the care and protection of a child including a contact order under s 86.

28 That part of the appeal from the Children’s Court to the District Court with respect to the making of a care order had been listed for hearing before the primary judge on 20 and 21 April. It was for that reason that the hearing of the issue raised by s 71(1)(c) was expedited in this Court and orders made at the conclusion of the hearing on 9 April last.

29 The present summons by the father was, as I have indicated, filed on 20 February 2009. It seeks that the orders made by Judge Williams on 15 December 2008 be quashed on the ground of an error of law on the face of the record.

30 It will be necessary to deal in greater detail with the findings of the primary judge in his first judgment to the extent to which they were incorporated by his Honour into his second judgment. To the extent that those findings were so incorporated, they form part of the record for the purposes of s 69 of the Supreme Court Act 1970.

The relevant provision of the Care Act

31 Before turning to his Honour’s findings, is it appropriate to refer to the following provisions of the Care Act. Pursuant to s 61 of the Care Act the Director-General may make an application for a care order that must specify the particular order sought and the grounds on which it is sought. The relevant ground upon which the Director-General sought a care order in the present case is that set forth in s 71(1)(c) of the Care Act which relevantly provides as follows:

“(1) The Children’s Court may make a care order in relation to a child ... if it satisfied that the child ... is in need of care and protection for any of the following reasons:

...

(c) the child ... has been ... sexually abused”

32 Chapter 6 of the Care Act applies to proceedings before the Children’s Court under the Act. Section 93(1) provides that proceedings before the Children’s Court are not to be conducted in an adversarial manner. By subsection (3) that Court is not bound by the rules of evidence except to the extent to which that Court otherwise determines. Importantly, subsection (4) provides that in any proceedings before the Children’s Court the standard of proof is proof on the balance of probabilities.

33 Section 91 of the Care Act provides for an appeal to the District Court by a party to proceedings who is dissatisfied with an order of the Children’s Court. Such an appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence on which the order was made, may be given on the appeal. Section 91(4) provides that in addition to any functions and discretions that the District Court has, apart from s 91, it has, for the purposes of hearing and disposing of an appeal, all the functions and discretions that the Children’s Court has under Chapters 5 and 6. It was common ground, therefore, that the standard of proof on the Director-General before the District Court was proof on the balance of probabilities.

The relevant findings of the primary judge in the first judgment

34 In the first judgment the primary judge relevantly made the following findings which he incorporated into his second judgment and which I paraphrase:

(a) NG is an active organism that exists in warm, moist conditions and causes physical reactions to its host. It has an incubation period of about two to five days. It cannot survive heat or if the medium in which it is being carried dries out. It survives and infects a person by attaching itself to and remaining on a mucosal surface. Relevantly, in pre-pubertal girls the relevant mucosal surface to which the organisms can attach themselves are the mucosal surfaces forward of the hymen;

(b) Although NG in a pre-pubertal girl in western society is quite rare, nevertheless it had occurred. Although the expert retained by DOCS was of the view that the circumstances of transference non-sexually by a formate (a term used to described either inanimate objects or non-human animate objects such as flies) was so incredibly unlikely as to be virtually impossible, other medical experts referred to studies which did report incidents of alleged non-sexual transfer of the organism.

35 At [22] his Honour therefore accepted on the balance of probabilities that if the right conditions existed, NG could infect a person without there necessarily being some form of sexual contact. Those conditions were the transfer of viable inoculum (being a minimum number of viable gonococci [being the active organism NG] in a transferable form) by any means to a mucosal surface.

36 At [25], his Honour found that the window of opportunity for infection of Sophie by her father was extremely small being either on 20, 21 or 22 July 2006, a period which coincided with the only time that he and Sophie were alone together at premises in a country town where they were staying in the absence of Sophie’s mother. It was not suggested that the absence of Sophie’s mother was due to some sort of contrivance on her father’s part.

37 His Honour also found (at [30]) that there was no evidence of major sexual interference with Sophie, either anatomically or through interviews with the child or observations of her behaviour including lack of complaint from the child at any time from then until the present. However, his Honour recognised that lack of anatomical evidence and/or complaint was not conclusive, although an important consideration.

38 At [31] his Honour found that major penetrative sexual interference would not be necessary to communicate NG as long as there was contact between the living organism and the mucosal surfaces of the female genitalia.

39 The father gave evidence before his Honour and categorically denied any sexual contact with his daughter. The father advanced four possible scenarios during the course of which, so he submitted, Sophie could have acquired NG non-sexually. The first concerned a ball swing which had been placed by the father on a tree at country town premises where they were staying as a birthday surprise for Sophie. It consisted of a round marine float suspended from a branch by some rope. Sophie sustained some irritation between her legs caused, apparently, by overuse of the swing in tight jeans. His Honour considered (at [39]) that the chances of her being infected as a result of the ball swing were so remote as to be unworthy of any serious objective consideration.

40 The second scenario related to the fact that at night Sophie would sleep between her parents. Without going into the details of how the infection might have occurred as a consequence of this scenario, it is sufficient to record that his Honour rejected it (at [40]) as speculative.

41 The third scenario related to Sophie’s toileting, particularly at night. Again without detailing the possibilities of this scenario, it is sufficient to record that his Honour found (at [42]) that

“[w]hilst perhaps not highly improbable, it is only remotely possible rather than probable to any degree.”

42 His Honour regarded the fourth scenario relating to the bathing of Sophie as the most persuasive one. Having rejected the transference of the infection through the bathwater due to dilution and temperature factors, his Honour found (at [43]) that what remained was the drying of Sophie by her father using either hand towels or bath towels or both. His Honour’s conclusion with respect to this scenario was as follows:

“Having regard to the medical evidence and the facts as revealed by [the father and the mother] I am prepared to accept the possibility that viable inoculum of a sufficient quantity could survive on a warm, moist towel and could be capable of infecting [Sophie] if, whilst still viable, it came into contact with a receptive mucosal surface. While the chances of that occurring are remote in the circumstances, such a chance is at least a realistic possibility.”

43 It will be necessary to return to this finding as it loomed large in the father’s case, the subject of the second judgment.

44 Under the heading “THE ISSUE OF CHARACTER”, his Honour expressed his findings with respect to the father’s evidence before him. He said (at [52]):

“In my view, [the father] was not an impressive witness, either in his ERISP or during his examination and cross-examinations. It is sometimes comforting and even appropriate to make a decision based upon the demeanour of a witness. However, such an approach has its dangers, particularly in a matter such as the present. I tend to agree with Mr Temby’s submissions that [the father’s] evidence at times did not carry conviction, that he tended to split hairs, and that at times, he was reluctant to take up untenable positions. However, in a case such as the present, unless a witness can be shown to be untruthful or their evidence is patently incorrect, or their evidence is contradicted by other evidence, in my view, it would be dangerous to come to a conclusion about a fact in issue based on a view of a witnesses’ demeanour alone. I have, despite the reservation expressed, not taken into account against [the father], my view of his demeanour as a witness.”

45 After referring to the evidence with respect to the father’s character and indicating that it would, in effect, be inappropriate to judge his character by reference to the fact that he went with a prostitute in Bali, his Honour then made the following observations:

“57. However, what occurred thereafter is extraordinarily difficult to comprehend. At the point when he noticed a discharge from his urethra, I am satisfied he knew or at least highly suspected that he had an STD/STI. So much so that on his own evidence, he began to wash his own underwear and tried as much as he could [to] remember to wash his hands and ensure that only he used his own bath and hand towels. And yet, with this regime in place, he continued to bathe with his daughter, dry her, help her with toileting, and sleep with her and her mother as was their otherwise usual practice.

58. Even more disturbing is the fact that he continued in this way on at least one or two nights and two or three days when he and his daughter were alone together, without the usual assistance provided by [the mother]. I would have expected any reasonable parent in such circumstances to have isolated himself from the rest of the family until such time as the problem was resolved. It is difficult to reconcile a caring loving father on the one hand with the same person who exposes his very young daughter to an unknown risk of infection from a disease.”

The second judgment

46 At [9]–[14] of the second judgment, the primary judge set out the principles applicable to the standard of proof. Reference was made to what was said by Lord Hoffmann in Re B (Children) [2008] UKHL 35; [2008] 3 WLR 1; [2008] 4 All ER 1 at [2], [4] and [5] and to what Baroness Hale of Richmond said in the same case at [70]–[72]. His Honour also referred to the review of the relevant authorities by Ipp JA in Palmer v Dolman [2005] NSWCA 361 at [35]–[47] and to a recent summary of the principles by McDougall J with whom McColl and Bell JJA agreed in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 at [55]. Finally his Honour referred to the judgment of Sackville AJA in this Court in Sophie (No 1) at [62]–[68]. No challenge was made to his Honour’s statement of the relevant principles.

47 The primary judge then referred to and recorded parts of [43], [44], [51], [52] and [62] of the first judgment, some of which I have already referred to above. He then noted (at [18]) that he had found in the first judgment that the only time Sophie was likely to have contracted the infection was either on 20, 21 or 22 July 2006 which coincided with the only time that Sophie and her father were alone together at the premises in the country town.

48 His Honour then dealt with the father’s denial of sexual impropriety noting (at [21]) that had he completely disbelieved the father he would have dismissed the appeal, observing that it was apparent from the first judgment that he did not completely reject the father’s evidence in that way. However, he acknowledged the error identified by this Court in Sophie (No 1) that he had not specifically considered the father’s denial of sexual impropriety for the reasons that he had set out at [52] of the first judgment (see [44] above).

49 However, his Honour then observed (at [22]) that the fact that he did not completely reject the father’s evidence did not mean that his evidence was necessarily to be accepted. Much, his Honour said, depended upon his credibility as a witness and consideration of the evidence as a whole. In particular, the issue of credibility was not to be judged solely on the issue of character which his Honour then said did not assist.

50 At [24] his Honour repeated his findings as to how NG could infect a person by attaching itself to and remaining on a mucosal surface. He noted his previous finding that if the right conditions existed NG could be transmitted from one person to another without sexual contact. He then turned to the bathing scenario and said (omitting transcript references):

“25. Accepting it was normal for the father and Sophie to bathe together and, that in accordance with Japanese tradition, the bathing would occur in a relatively hot and humid location, NG infection would require, in the present case, for an amount of viable NG to be discharged from the urethra and be attached to a towel, presumably by the father drying himself. Sufficient amount of the live discharge would then have to be deposited on Sophie’s mucosal genitalia also, presumably, by the father drying her, and then survive.

26. This would be at a point in time where both had just been bathing in a bathtub and then showering, so that I would presume that the amount of any discharge on the father’s penis would probably not be substantial. This circumstance also has to be considered having regard to the size and constituency of an average towel and the way people normally dry themselves and parents dry their children. As far as the present case is concerned, the father was conscious that he had a discharge and did not want to pass it on to other members of the household, by taking precautions such as, for example, using separate towels and washing his own linen. In evidence, the father said that although his wife usually dried Sophie, when he did [dry] her he tended to concentrate on drying her first, starting with her hair and then drying himself. This was because of a Japanese tradition in regard to drying the hair first. He was also asked in chief, specifically in relation to [the stay at the country town], was it ever necessary for him to use the towel on himself before towelling Sophie. He replied ‘Apart from sometimes, I remember using a towel just to towel my eyes, I had a particular little quirk where if I get water round there I don’t like the feeling, you know, like some water, so I might just dab that area but apart from that, no.’” (emphasis in original)

51 At [27] his Honour noted his previous finding that NG could be transmitted if a sufficient viable amount of inoculum was on the towel used to dry Sophie after her bath. He then said:

“However, I also found that ‘the chances of that occurring were remote’ having regard to the circumstances, some of which I have referred to in greater detail above [a reference, I infer, to [26] of his judgment]. I rated that chance as being ‘highly improbable’ albeit a ‘realist possibility’. The Court of Appeal has said that in requiring the Director to effectively negative such a chance occurring was setting the degree of proof on the balance of probabilities too high and I was in error.”

52 His Honour then made the following findings (omitting transcript references):

“28. Having re-read and reconsidered the evidence of the father and having regard to the evidence referred to above I would have to say that the prospect of infection by the only realistic remaining methodology, would have to be extremely improbable in the particular circumstances even if, as was suggested, the father would sometimes carry the child from the bathroom to the bedroom with the same towel wrapped around her.

29. ...In my view, having regard to the experts’ views of the various scenarios, the chances of Sophie being infected through bathing or towelling becomes speculative.”

53 His Honour then referred to the medical evidence being more than just a statistical analysis and continued (at [31]):

“...It also establishes that there are some rare circumstances where the transference can be a non-sexual one. In the present case the clear and unambiguous facts are that the father had the infection and that it was he and he alone who passed it on to his daughter. There are no other vectors of infection to be considered. The issue is was the daughter’s infection transmitted sexually or non-sexually. The only scenario that I have found that offers a realistic possibility of such transference is the bath towel but that the chances of that occurring in that situation are remote and highly improbable – indeed extremely so.”

54 At [32] and [33] the primary judge again referred, amongst other things, to the probability that Sophie’s infection occurred during the “window” period of 20, 21 or 22 July. He acknowledged the dichotomy in the father’s evidence of trying to avoid infection on the one hand and on the other, as the Director-General submitted, engaging in conduct fraught with the very risk he was seeking to avoid. He then continued:

“34. Of course the responsibility of establishing a reason for intervention lies on the Director-General. As I stated in my judgment, the grounds for that intervention were made out by the fact of Sophie’s infection, the fact that the father was the source of that infection and the fact that the most probable way in which such an infection occurred was by sexual contact. The expert evidence has not changed that situation even having regard to the bathing/towelling scenario.

35. Against that I have the father’s denial of sexually inappropriate conduct, the lack of any objective finding of sexual interference in a physical sense and the lack of any complaint by Sophie of any unusual or inappropriate behaviour. I have already dealt with the latter two propositions in my previous judgment. Complaint in such circumstances is very dependent on the age and understanding of the child and the nature of the physical interference. The fact that I have found that the infection probably occurred when the father was alone with his daughter, the fact that I have found that it is extremely improbable that the daughter was infected by the mechanism of towelling and the fact of the delay in adequately seeking medical treatment are matters I have also taken into account as well as my comments as to the father’s demeanour, subject to the qualifications I expressed on that subject in my judgment. However, as I also stated, there were other aspects of the father’s evidence that made it difficult to feel comfortably satisfied with what he was saying. At [the] time his evidence did not carry conviction, he talked around the subject without coming to the point and he was hesitant in answering questions that would tend to place him in an untenable position. ...”

55 I pause here to note the father’s submission that his Honour’s reference to the Director-General’s reason for intervention was a reference to his decision to take such action he saw as necessary to safeguard or promote the safety, welfare and well-being of a child in need of care and protection: see s 34(1) of the Care Act. The action taken by the Director-General was the making of an application for a care order to the Children’s Court pursuant to s 61(1). I think this understanding of what his Honour said is, in all probability, correct.

56 In other words, his Honour stated that reasonable grounds did in fact exist pursuant to the combined operation of ss 34(1) and 61(1) for the Director-General to apply for a care order from the Children’s Court. The ground specified for the purposes of s 61(2) was that Sophie was infected as a consequence of being sexually abused within the meaning of s 71(1)(c). Notwithstanding the bathing/towelling scenario, the expert evidence established that the most probable, but not the only, manner in which the infection could have been transmitted by the father to Sophie was by sexual contact. His Honour (at [35]) dealt with the father’s denial of any such contact as I have recorded at [54] above.

57 The primary judge’s ultimate conclusion with respect to the father’s denial of sexual contact was stated in the following terms (at [37]):

“In my view, the father’s evidence was not such that I could, without hesitation, accept it as correct on the ultimate issue, having regard to all the circumstances. Once the Director-General has established a case on the balance of probabilities, the responsibility of proving otherwise shifts to, in this case, the father. In the particular circumstances here, I do not accept on the balance of probabilities that Sophie’s infection was caused in any of the ways advanced in the father’s case. That leaves a denial that is compromised by the factors referred to above.”

58 Under the heading “RESOLUTION” his Honour (at [39]) stated that having regard to the authorities to which he had referred, proof of the allegation of sexual abuse was “on a simple balance of probabilities” having regard to the provisions of s 140 of the Evidence Act 1995 upon which Ipp JA had commented in Palmer v Dolman at [40]. He then continued in these terms:

“For the Department to succeed I have to find as a fact, on the balance of probabilities, that Sophie’s infection was occasioned by sexual contact of some kind. This is a circumstantial case and as such ‘it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact or inconsistent with its existence, be excluded before the fact can be found.’ ... The inquiry is simply, has the allegation been proved on the balance of probabilities ...”

59 His Honour then referred to the passage from Lord Hoffmann’s speech in Re B (Children) to which he had earlier referred noting, as his Lordship had observed, that facts are either established or not and that where the tribunal of fact is left in doubt, that doubt is resolved by the rule that the party who carries the burden of proof either will or will not have discharged it. Thus, if the tribunal is unable to say one way or the other whether a particular fact has been proved, then the fact is treated as not having happened.

60 After stating (at [41]) that the sole factual issue was whether Sophie had contracted NG as a consequence of sexual misconduct by her father, he then continued

“I suppose it is possible that if I was unable to determine whether or not Sophie’s infection was caused by sexual contact, I could perhaps consider the second limb of s 71(1)(c) as to whether the child is likely to be sexually abused or ill treated. However, that consideration would only apply, it seems to me, if I also was satisfied no other vector of infection, other than a sexual transmission, was possible in all the established circumstances. On the balance of probabilities I would be so satisfied.” (emphasis added)

61 Finally, his Honour concluded in the following terms:

“45. The Department has established beyond any doubt that the most probable vector of infection for NG is via sexual transmission. I accept that the defence has established that there [are] physical ways, held to be remote in the circumstances, that the infection could have been caused non-sexually and the father has denied, on oath, any sexual interference. On the balance of probabilities, and having regard to the matters referred to above, I do not accept that any of the ways or means suggested by the father as a cause of Sophie’s infection have been realistically established and the overwhelming evidence, on the balance of probabilities, is that the infection did occur through sexual contact.

46. Given that NG is usually transmitted sexually and given the fact that non-sexual infection via the bathroom scenario was, although scientifically possible, extremely remote in the circumstances, I find on the balance of probabilities that there being no other relevant means of a non-sexual cause of the infection being established and there being no other person capable of causing the infection, the cause of Sophie’s infection was through inappropriate sexual contact by the father.

47. In those circumstances I find that Sophie is in need of care and protection because she has been sexually abused.”

The father’s asserted error of law

62 The father submitted that each of [37] and [45] of the second judgment revealed an error of law. In essence that error, particularly at [37], was his Honour’s placing of the burden of disproving that Sophie was infected by her father’s sexual misconduct upon her father rather than placing the burden of proving this fact upon the Director-General. Initially the father submitted that his Honour’s reference at [37] to the Director-General having established a case on the balance of probabilities, like the statement in the first sentence of [34], was also a reference to the Director-General having established that he had reasonable grounds for making the application to the Children’s Court for a care order. Accordingly, his Honour was asserting that once that application had been made on reasonable grounds as required by s 34(1), the whole burden of disproving that Sophie’s infection was caused by sexual contact was to be borne by the father.

63 Alternatively, it was submitted that his Honour was asserting that the Director-General had established on the balance of probabilities a prima facie case for the making of an order upon the ground specified in s 71(1)(c). He had then cast the burden of disproving that prima facie case upon the father in circumstances where, as Ipp JA noted in Palmer v Dolman at [41], the onus of proof was only to be applied at the final stage of the reasoning process, it being erroneous to divide the process into stages and at each stage to apply some particular standard of proof.

64 Ultimately, the primary contention of the father, as I understand it, was that once the Director-General had elicited evidence which, if considered alone, would justify a finding on the balance of probabilities of sexual contact, the onus then lay upon the father to disprove such a finding.

65 It was thus submitted that it was not the case that his Honour was merely shifting the evidentiary onus to the father: on the contrary, he was placing upon him the ultimate onus of proving the negative proposition that Sophie’s infection had not, on the balance of probabilities, been caused by sexual contact.

66 In Sophie (No 1), Sackville AJA noted (at [53]) that in considering whether the primary judge misapplied the standard of proof, it was necessary to read his judgment as a whole. Further, his Honour observed (at [54]) that the fact that the decision under review was that of the District Court did not mean that it must be construed “with an eye finely tuned to error”. The reasons of the primary judge must be read as a whole, fairly and in context.

67 It was submitted on behalf of the Director-General that his Honour’s reasoning process disclosed no error unless it was clear that he had firmly placed the burden of disproving the ultimate issue of infection by sexual contact squarely upon the father. Contrary to the father’s submission it was contended that his Honour had not proceeded by a staged process of reasoning or, at the very least, he had not treated the exercise as one of formal logic. Although he dealt with the matter in a somewhat discursive fashion with reference back to his earlier reasons, when the relevant part of the second judgment was read as a whole, it was patent that his Honour had placed the ultimate burden of proving on the balance of probabilities that Sophie was infected as a consequence of sexual contact by her father squarely upon the Director-General. The judgment was replete, so it was submitted, with statements to that effect.

The father’s asserted error should be rejected

68 In my opinion the primary judge made it clear on a number of occasions that he had to find, on the balance of probabilities that, as a fact, Sophie’s infection was occasioned by sexual contact. At no time did he assert the contrary, namely, that he had to find on the balance of probabilities that her infection was occasioned by non-sexual contact of some kind.

69 As his Honour noted at [39]:

“The inquiry is simply, has the allegation been proved on a balance of probabilities ...”

70 The fact that his Honour placed the ultimate onus upon the Director-General was evidenced not only by his reference at [40] to the passage from the speech of Lord Hoffmann in Re B (Children) to which reference has been made but also by the first two sentences of [45] which I have recorded at [61] above.

71 Having referred to the Director-General’s evidence that the most probable vector of infection was by sexual transmission, his Honour then took into account two factors. The first was his finding on the evidence that transmission could physically occur by non-sexual means and, second, the father’s sworn denial of sexually interfering with his daughter.

72 His process of reasoning as I perceive it was that in the circumstances established by the evidence, although scientifically possible, non-sexual infection via the towelling scenario was “ extremely remote”. This was an appropriate finding given his Honour’s finding with respect to the evidence of the father at [26] of his judgment, which I have recorded at [50] above, and which established that not only did the father use a separate towel to dry Sophie from the one he used on himself but also that he did not permit any part of Sophie’s towel to come into contact with any part of his body except his eyes.

73 Although it was no doubt possible that when dabbing his eyes part of the towel might have accidentally come into contact with the father’s genitalia, his Honour’s finding (at [31]) was that in the circumstances the chance of that occurring “was remote and highly improbable – indeed extremely so”. It was in the foregoing context that his Honour considered (at [37]) that the father’s denial of sexual contact was “compromised”.

74 Once his Honour had put aside the bathroom scenario it then followed as a matter of deduction, as [46] of his judgment revealed, that Sophie’s infection was as a matter of probability caused by sexual contact. True it is that the father’s denial was not completely disbelieved, but, on the other hand, his Honour made it clear that the totality of the evidence was such as to compromise the father’s credibility so that in weighing his denial against the balance of the evidence, he was satisfied to the requisite standard that Sophie’s infection was caused by her father’s inappropriate sexual contact.

75 I would accept that [37] of his Honour’s judgment could have been more felicitously expressed. But when it is read as a whole and in the context of the paragraphs which both preceded and succeeded it, there can be no doubt that his Honour consciously placed the ultimate burden of proving on the balance of probabilities that sexual contact was the cause of Sophie’s infection wholly upon the Director-General.

76 Given the father’s denial of sexual contact upon the basis of the bathing/towelling scenario, his Honour’s rejection of it clearly left the father’s denial, as he described it, “compromised”.

77 I therefore do not accept that at [37] his Honour was shifting the burden of proving that Sophie’s infection was caused by non-sexual means to the father or, to put the matter another way, that he placed upon the father the burden of disproving that the infection was caused by sexual means. If there was any intention to shift the onus it was, in my view, a shifting only of the evidentiary onus.

The question of costs

78 On the assumption the father failed, the Director-General did not seek an order for costs in his favour. However, having supported the submissions of the Director-General in resisting the father’s summons, counsel for Sophie’s mother as well as counsel representing Sophie each sought an order for costs against the father.

79 However, Sophie’s mother was in fact an appellant in the District Court and, therefore, in the same interest as the father although she changed her position before this Court. Sophie was properly represented but was really in no position to take sides in the dispute although she formally supported and adopted the submission of the Director-General.

80 In all the circumstances, a proper exercise of the Court’s discretion on the question of the costs on the summons of the representatives of Sophie and her mother required that each should bear their own costs.

81 It is for the foregoing reasons that I joined in the orders of the Court on 9 April last in dismissing the father’s summons with no order as to costs.

82 BASTEN JA: On 9 April 2009 the Court ordered that the application to quash orders made in the District Court be dismissed.

Nature of proceedings
83 The proceedings in this matter were commenced in the Equity Division and removed to this Court in compliance with s 48 of the Supreme Court Act 1970 (NSW). Orders were sought pursuant to s 69 of the Supreme Court Act “in the nature of a writ of certiorari” to quash orders “made on 15 February 2008” in the District Court by Williams DCJ in proceedings Nos 1606 and 1690 of 2008 in that Court. (The date was erroneous and should have referred to the orders made on 15 December 2008.)

84 This Court may no longer issue a writ of certiorari: s 69(1)(d). It is therefore unnecessary and inappropriate to seek an order that the record of the District Court be removed into this Court. The proceedings in this Court, properly, proceeded on the basis that that had in fact happened and the record was already before this Court: unfortunately, it was not.

85 The power of this Court to quash orders made in the District Court depends on demonstration of jurisdictional error or an error of law on the face of the record of the proceedings in the District Court: see Craig v South Australia [1995] HCA 58; 184 CLR 163. Jurisdictional error was not invoked in the present case, but only error of law on the face of the record. For that purpose, the applicant was entitled to rely upon, as part of the record, the reasons expressed by the District Court for its ultimate determination: s 69(4). That provision undoubtedly effects an extension of the content of the “record”, which would otherwise have been confined to the documents initiating and defining the matter in the District Court and its order or determination: see Craig at 180. The difficulty in the present proceedings is that no document initiating the process or defining the matter in question was before this Court. Those documents might have included the notices of appeal in each matter before the District Court and, because the matter proceeded in the District Court by way of a fresh hearing, probably the initiating process in the Children’s Court, from which appeal was brought to the District Court.

86 The Court was informed that Sophie was removed by the Director-General pursuant to s 43 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Care and Protection Act”). That step having been taken, the Director-General was obliged to apply to the Children’s Court for an appropriate care order: s 45(1). Although no proceedings or orders from the Children’s Court were before this Court in any formal sense, it appears that the Children’s Court was satisfied that Sophie had been, or was likely to be, physically or sexually abused or ill-treated, within the meaning of s 71(1)(c) of the Care and Protection Act. That finding entitled the Court to make a “care order” under Ch 5 of the Care and Protection Act.

87 The terms of the orders made in the Children’s Court were not directly before this Court, but it appears from earlier proceedings in this Court that orders were made on 24 August 2007 “that Sophie be placed in the parental responsibility of the Minister until the age of 18; that responsibility for the preservation of her culture be allocated to the mother; and that the father be prohibited from having any contact with the child until her eighteenth birthday”: Director General of Department of Community Services; Re Sophie [2008] NSWCA 250 at [3] and [19] (“Re Sophie (No.1)”). In the next stage of the proceedings in the District Court, Williams DCJ dismissed the appeals brought from the orders in the Children’s Court. It was with respect to that judgment that the present application was brought. As the matter before his Honour required consideration of the correctness and appropriateness of the orders, those orders must form part of the record for the purposes of the present proceedings. Even when this issue was raised in the course of the hearing, no party sought to put those orders before the Court.

88 The appeals before the District Court were brought by the father (matter No 1606/08) and the mother (matter No 1690/08) respectively. From the way in which the matters were dealt with in the District Court, it appears that the sole ground of appeal was, in each case, whether the precondition to making the order had been proved. It must be accepted for present purposes that that was the only issue before the District Court.

89 In Craig, the High Court rejected the proposition that under the general law the reasons of the inferior court should form part of the record. Having noted that such a view was contrary to the weight of authority, their Honours continued (at 181):

“More importantly, the approach that the transcript of proceedings and the reasons for decision constitute part of ‘the record’ would, if accepted, go a long way towards transforming certiorari into a discretionary general appeal for error of law upon which the transcript of proceedings and the reasons for decision could be scoured and analysed in a search for some internal error.”

90 Although that description is no doubt mitigated by the absence from the record, as expanded by s 69, of the transcript, the fact that the reasons for judgment are included within the record, by statutory variation of the general law, demonstrates that such proceedings in this Court are not inaptly described as a “discretionary general appeal for error of law”.

Nature of error
91 The appeals from the Children’s Court had come before Williams DCJ on an earlier occasion, his Honour’s first judgment being delivered on 30 May 2008: DW v Department of Community Services [2008] NSWDC 156; 7 DCLR (NSW) 144. On that occasion, he upheld the appeals and quashed the orders made by the Children’s Court. From that judgment proceedings were brought by the Director-General in this Court seeking to have the first judgment in the District Court quashed and the matter reheard according to law. That application was successful in Re Sophie (No. 1). It was his Honour’s second judgment, on remittal, delivered on 15 December 2008, which is now before this Court.

92 As noted above, the issue in the District Court was whether the statutory precondition in s 71(1)(c) of the Care and Protection Act had been made out. That it had, was essentially a conclusion of fact, involving evaluative judgment on the part of the trial judge. The circumstances in which such a finding can be challenged for legal error are limited: see, eg, Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 356 (Mason CJ); Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547 at 557 (Mason JA); Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156 (Glass JA); Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [14]- [19]; Aronson, Dyer and Groves, Judicial Review of Administrative Action (4th ed, 2009) at [4.105]-[4.120]. It was not, nor could it have been, suggested in the present case that there was no evidence to support the finding. Nor was it suggested that there was any procedural unfairness in the process. The statutory term did not involve any legal concept, nor was it suggested that his Honour had misconstrued the provision. In substance, the complaint was that his Honour had misapplied the burden of proof.

93 In Re Sophie (No. 1) the basic challenge involved an assertion that his Honour had misapplied the burden of proof in overturning the orders made in the Children’s Court, despite apparently finding that there was compelling evidence that Sophie had been sexually abused. In identifying matters “not in dispute” this Court held at [48]:

“First, it was common ground that the primary Judge correctly held that the Director-General bore the burden of proof on the balance of probabilities. The better view would seem to be that this conclusion flows from the interaction between ss 93(4) and 91(4) of the [Care and Protection] Act. ... An alternative path to the same conclusion is through s 140(1) of the Evidence Act ....”

94 The Court also noted as a matter not in dispute that s 140(2) of the Evidence Act 1995 (NSW) applied to the proceedings: at [49]. Section 140, reads as follows:

“140 Civil proceedings: standard of proof

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a) the nature of the cause of action or defence, and

(b) the nature of the subject-matter of the proceeding, and

(c) the gravity of the matters alleged.”

95 On the present application for judicial review senior counsel for the Director-General said that it was not common ground that s 140 of the Evidence Act applied in the proceedings, but otherwise the propositions noted above as having not been in dispute in Re Sophie (No. 1) were not the subject of submissions in the present matter either. Nevertheless, something more must be said about them, because unless the primary judge was bound to apply the identified legal principles, no error of law can arise from a failure properly to apply such principles. First, there is a real issue as to whether there is a legal burden placed on the Director-General with respect to proceedings under the Care and Protection Act. In this context, it is necessary to consider the terms of s 93 of the Care and Protection Act, which is found in Ch 6 and applies to proceedings before the Children’s Court under the Act.

“93 General nature of proceedings

(1) Proceedings before the Children’s Court are not to be conducted in an adversarial manner.

(2) Proceedings before the Children’s Court are to be conducted with as little formality and legal technicality and form as the circumstances of the case permit.

(3) The Children’s Court is not bound by the rules of evidence unless, in relation to particular proceedings or particular parts of proceedings before it, the Children’s Court determines that the rules of evidence, or such of those rules as are specified by the Children’s Court, are to apply to those proceedings or parts.

(4) In any proceedings before the Children’s Court, the standard of proof is proof on the balance of probabilities.

(5) Without limiting subsection (4), any requirement under this Act that the Children’s Court be satisfied as to a particular matter is a requirement that the Children’s Court be satisfied on the balance of probabilities.”

96 The operation of s 93 in relation to the District Court is, in part, achieved by s 91(4), but more generally by sub-s 91(8). These two provisions read as follows:

“91 Appeals

...

(4) In addition to any functions and discretions that the District Court has apart from this section, the District Court has, for the purposes of hearing and disposing of an appeal, all the functions and discretions that the Children’s Court has under this Chapter or Chapter 6.

...

(8) The provisions of Chapter 6 apply to and in respect of the hearing of an appeal under this section in the same way as they apply to and in respect of the hearing of a care application under that Chapter.”

97 Assuming that s 140 of the Evidence Act, dealing with the standard of proof in civil proceedings, is a rule of evidence, that provision had no application in the District Court unless the District Court determined that it applied: Care and Protection Act, s 93(3). Whether such a determination, followed by a failure properly to apply the rule, could constitute an error of law for the purposes of judicial review proceedings is a matter which does not need to be addressed in the present case.

98 Whether s 140 of the Evidence Act imposes a burden on a particular party, or merely identifies the standard of proof which is to be applied to the party bearing the burden, may be open to question. In the present case, given the fact that the proceedings are not to be conducted in an adversarial manner (s 93(1)), it is at least doubtful that there is any legal burden of proof imposed on a particular party: compare, in relation to an administrative tribunal, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [40]. Again, as a practical matter, it is no doubt true that the Director-General must ensure that there is material before the Court which satisfies it as to the necessary preconditions to the making of a care order, but there would be no legal error if the Court were properly satisfied of the relevant precondition otherwise than as a result of the case presented by the Director-General. That possibility is real because of the requirement that the Court conduct the proceedings with as little formality and legal technicality and form as the circumstances of the case permit: s 93(2). Again, it is not necessary to determine the precise nature of the legal obligations which bind a court in proceedings to which s 93 of the Care and Protection Act applies, but it is desirable to state that what appear to have been common assumptions in Re Sophie (No. 1) and were not in issue in the present case are not necessarily legally correct.

Misapplication of legal principles
99 The error which led to the quashing of his Honour’s first decision in Re Sophie (No. 1) was that his Honour had applied “a standard of proof higher than the balance of probabilities, even taking into account the gravity of the allegation made against the father”: at [67]. That was a finding that although the correct legal principles had been stated, they had not been correctly applied.

100 Such a conclusion may well be open in circumstances where the Court has before it the reasons of the Court below and is able to identify whether or not the principle applied was erroneous in point of law. In other cases, such a conclusion may be inferred from the fact that the conclusion reached was not reasonably open on the primary facts as found. However, where neither of these circumstances arises, but where the primary judge has correctly stated the relevant legal principle, the Court should exercise great caution before inferring from the outcome (which was reasonably open) that some erroneous principle has been applied, despite the correct statement of the principle. The reason for such caution is that, generally, the drawing of such an inference of error is likely to involve an impermissible reassessment of the evaluative judgment formed by the court below: see generally, Aronson et al, at [4.125]-[4.140].

Rejection of present application
101 The applicant’s case came down to a simple proposition that the primary judge had effectively imposed a legal burden of proof on the father to demonstrate that his young daughter had acquired a venereal disease otherwise than through sexual abuse on his part. The basis of that challenge was said to be found most clearly in the following passage in the reasons at [37]:

“In my view, the father[’s] evidence was not such that I could, without hesitation, accept it as correct on the ultimate issue, having regard to all the circumstances. Once the Director-General has established a case on the balance of probabilities, the responsibility of proving otherwise shifts to, in this case, the father. In the particular circumstances here, I do not accept on the balance of probabilities that Sophie’s infection was caused in any of the ways advanced in the father’s case. That leaves a denial that is compromised by the factors referred to above.”

102 This was not a case in which two witnesses to an event gave contradictory evidence as to what had occurred. In such a case there might be demonstrable error if the tribunal of fact had first considered and accepted the case put by the party bearing the burden of proof and then asked whether the conclusion was contradicted by the other. However, even assuming that the Director-General bore the burden of proof, this was not such a case. On the one side was scientific evidence which established that there were “some rare circumstances” where the infection could be transferred by a non-sexual means but that the suggestion put forward by the father was “extremely improbable”: at [31] and [35]. In addition, his Honour had held that the father’s denial of sexual interference “did not carry conviction”: at [35]. In those circumstances, it was entirely accurate, as a practical matter, to say that the father bore the burden of proving that some alternative means of infection had arisen in circumstances where scientific knowledge as to the mechanism of transfer of infection rendered any such explanation highly improbable. Despite the double use of the term “balance of probabilities” in reference to shifting responsibility of proof, I do not understand his Honour to have been saying anything which was legally erroneous. I agree with the reasoning of Tobias JA in this regard.

103 His Honour’s final conclusions were set out in three paragraphs, to which objection was taken, but on much flimsier grounds. The paragraphs were as follows:

“45 The Department has established beyond any doubt that the most probable vector of infection for NG [Neisseria gonorrhoea] is via sexual transmission. I accept that the defence has established that there [are] physical ways, held to be remote in the circumstances, that the infection could have been caused non-sexually and the father has denied, on oath, any sexual interference. On the balance of probabilities, and having regard to the matters referred to above, I do not accept that any of the ways or means suggested by the father as a cause of Sophie’s infection have been realistically established and the overwhelming evidence, on the balance of probabilities, is that the infection did occur through sexual contact.

46. Given that NG is usually transmitted sexually and given the fact that non-sexual infection via the bathroom scenario was, although scientifically possible, extremely remote in the circumstances, I find on the balance of probabilities that there being no other relevant means of a non-sexual cause of the infection being established and there being no other person capable of causing the infection, the cause of Sophie’s infection was through inappropriate sexual contact by the father.

48. In those circumstances I find that Sophie is in need of care and protection because she has been sexually abused.”

104 Counsel for the father complained that, in the first sentence, a statement was being made at the most general level, the reference to infection not being a reference to Sophie, but to the case of any child. However, there is little substance in that complaint: Sophie was a child and there was nothing about her which rendered some alternative explanation plausible.

105 The second complaint was that his Honour held “on the balance of probabilities” that the ways or means suggested by the father were not established. That again does not impose any legal burden on the father in the circumstances where his Honour held, consistently throughout this part of his reasoning, that “the overwhelming evidence ... is that the infection did occur through sexual contact”. If the father’s proposal was improbable, it clearly could not overcome the overwhelming weight of contrary evidence.

106 The highest the complaint against these paragraphs came was one of infelicitous expression. No error of law was demonstrated.

Conclusion

107 For these reasons, I joined in the order of the Court made on 9 April 2009, dismissing the summons. No order was made as to costs for the reasons given by Tobias JA.

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LAST UPDATED:
1 May 2009