DW & KW v Dept of Community Services; Re "Sophie" No 2 [2008] NSWDC 344

DW & KW v Dept of Community Services; Re "Sophie" No 2 [2008] NSWDC 344

On the evidence, and applying the correct standard of proof on the balance of probabilities as clarified by appellate and High Court authority, the only realistic cause of Sophie's infection was sexual transmission by her father, and there is no equally probable alternative explanation. The ground in s71(1)(c) is satisfied.

Parties
Appellant: DW; Appellant: KW; Respondent: Dept of Community Services; Subject Child: Sophie
Jurisdiction
Australia
Judgment Date
15 December 2008
Procedural Posture
Civil Care Appeal / Threshold Appellate Determination After Remittal From Court of Appeal
Outcome
Appeals on threshold issue dismissed
Legal Topics
Standard of Proof, Sexual Abuse, Balance of Probabilities, Care Orders
Child Protection Civil Procedure Standard of Proof Sexual Abuse Balance of Probabilities Care Orders

Case Brief

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Parties

DW

Appellant

KW

Appellant

Dept of Community Services

Respondent

Sophie

Subject Child

Procedural Posture

Civil Care Appeal / Threshold Appellate Determination After Remittal From Court of Appeal

Legal Issues

  1. 1 What is the correct standard of proof for serious allegations in care proceedings?
  2. 2 Whether the infection contracted by the child was transmitted sexually by the father?
  3. 3 Whether on the balance of probabilities the ground under s71(1)(c) of the Children and Young Persons (Care & Protection) Act 1998 is made out?

Ratio Decidendi

On the evidence, and applying the correct standard of proof on the balance of probabilities as clarified by appellate and High Court authority, the only realistic cause of Sophie's infection was sexual transmission by her father, and there is no equally probable alternative explanation. The ground in s71(1)(c) is satisfied.

Court Disposition

Appeals on threshold issue dismissed

Orders

  • Appeals dismissed
  • Sophie found in need of care and protection as she has been sexually abused