M v M

The case of M v M involved an application for leave to appeal to the High Court of Australia concerning access to a child. The dispute arose from an application filed by the respondent wife, alleging that the five-year-old child of the marriage had been sexually abused by the husband. The trial judge had suspended the husband's access to the child, a decision that was subsequently considered by the Full Court. The High Court granted leave for a representative of the child to appear.

The central legal issue before the High Court was the correct legal test to be applied when determining whether to suspend a parent's access to a child, particularly in circumstances where allegations of abuse have been made. Specifically, the court was asked to consider the difference between the legal standard articulated by the majority of the Full Court and that expressed by Chief Justice Nicholson, focusing on the distinction between a "lingering doubt" or "doubt" and a "real risk" of harm to the child.

The applicant's counsel argued that the majority of the Full Court had applied an incorrect legal standard, suggesting that a "lingering doubt" in the trial judge's mind about the possibility of abuse was sufficient to suspend access. In contrast, counsel contended that Chief Justice Nicholson's approach, requiring a "real risk" of emotional, physical, or sexual abuse, was the correct legal principle. The applicant submitted that the majority's test was too broad, potentially leading to the automatic suspension of access upon the mere making of an allegation, which would be a harsh outcome. Brennan J questioned whether the Full Court's finding of a "risk" was legally objectionable, to which the applicant responded that even a risk, if not a "real risk" as per Chief Justice Nicholson, was insufficient to warrant suspension of access.