M v M [1988] HCA 68

M v M [1988] HCA 68

Where a trial judge is unable to exclude the possibility of sexual abuse and concludes that there is an unacceptable risk to the child if access is granted, the court must prefer the child’s welfare. The test is whether access would expose the child to an unacceptable risk of sexual abuse, not whether abuse is substantiated on the balance of probabilities.

Jurisdiction
Australia
Procedural Posture
Appeal / High Court Appeal From Full Court of the Family Court
Outcome
Appeal dismissed
Legal Topics
['custody' 'access' 'sexual Abuse Allegations' 'welfare of Child']
['family Law'] ['custody' 'access' 'sexual Abuse Allegations' 'welfare of Child']

Case Brief

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Procedural Posture

Appeal / High Court Appeal From Full Court of the Family Court

Legal Issues

  1. 1 ['What is the proper legal test where allegations of sexual abuse are raised in custody/access proceedings?' 'What standard must be met to deprive a parent of access for risk of sexual abuse?']

Ratio Decidendi

Where a trial judge is unable to exclude the possibility of sexual abuse and concludes that there is an unacceptable risk to the child if access is granted, the court must prefer the child’s welfare. The test is whether access would expose the child to an unacceptable risk of sexual abuse, not whether abuse is substantiated on the balance of probabilities.

Court Disposition

Appeal dismissed

Orders

  • ['Appeal dismissed']