M v M [1988] HCA 68

High Court of Australia Mason C.J. Brennan, Dawson, Toohey and Gaudron JJ. M v M [1988] HCA 68

ORDER Appeal dismissed.

Cur. adv. vult.

The Court delivered the following written judgment:—

Dec. 8 Mason C.J., Brennan, Dawson, Toohey and Gaudron JJ.

This is an appeal by the husband and father of the daughter of the marriage, born on 6 December 1982, against an order of the Full Court of the Family Court (Baker and Maxwell JJ., Nicholson C.J. dissenting) dismissing his appeal from an order of Gun J. in the Family Court. By that order Gun J. discharged an order for custody which had been made by McGovern J. on 15 January 1987 in favour of the respondent wife and mother until further order and ordered that the wife have the guardianship and custody of the child. His Honour also discharged an order which had been made by Bulbeck J. on 5 December 1986 for access on the part of the father. In the appeal to this Court the father seeks an order that he be granted access to the child.

Central to the case are the wife's allegations that the father has sexually abused the child and that the child's welfare will be put at further risk. At first instance Gun J. was not satisfied that the father had so abused the child. On the other hand, he was not satisfied that the father had not so abused the child. He considered that there was a possibility that the child had been sexually abused by the husband and that in the interests of the child he should eliminate the risk of such abuse by denying access to the husband. He also rejected the suggestion that the husband should have supervised access. In the Full Court the majority concluded that Gun J. applied the correct principles and that there was ample evidence to support the findings which he made. Nicholson C.J. dissented on the ground that an order for access should not be refused because there was a mere possibility that access would expose a child to sexual abuse. He considered that "[t]here must be a real or substantial risk of such abuse occurring as a matter of practical reality". His Honour would have referred the matter back to the primary judge for further consideration because he had not applied the correct test.