M v M; B v B

The High Court of Australia heard appeals in two matters, M v M and B v B, concerning the suspension of parental access to children. The appellant, M, argued that access had been denied based on insufficient grounds, specifically a "lingering doubt" or mere possibility of harm to the children, rather than a satisfaction on the balance of probabilities. The appellant contended that this approach was not a sufficient basis to suspend access and that the matters should be remitted to the Family Court for redetermination.

The central legal issues before the High Court were whether the Family Court judges had erred in suspending access based on a "lingering doubt" or a possibility of risk to the child's welfare, and whether this approach was too broad. The appellant also raised questions regarding the presumption in favour of the parent-child relationship, the application of ordinary rules of evidence in such cases, and the appropriate venue for resolving these disputes.

The appellant's primary submission was that the trial judges' decisions were permeated by the notion that a "lingering doubt" about potential sexual abuse was a sufficient ground to discharge access orders. The appellant argued that despite no definitive findings of abuse, the existence of suspicion, leading to doubt in the judge's mind, resulted in the refusal of access. This was contrasted with the principle that a judge should be satisfied on the balance of probabilities that the husband had sexually abused the child, or conversely, be sure that he had not, to discharge or confirm access orders respectively. The appellant submitted that the test applied by the trial judges, which allowed for the suspension of access if there was a risk that the child might be harmed, was expressed too broadly and that the trial judge was not satisfied on the balance of probabilities that sexual abuse had occurred.