The family law case of M v M (1998) HCA 68 (“M & M”) is an Australian High Court case that established the ‘unacceptable risk’ test for assessing a parent’s potential harm to a child. The case involved allegations of sexual abuse against the father, and the court ultimately ruled that the father posed an unacceptable risk, ordering that the child have no further contact. This case is critical because it emphasised that the child’s best interests are the paramount consideration.

Background

The matter involved an appeal against an order of the Full Court of the Family Court. It involved allegations that the father had sexually abused his daughter. The trial judge held that he could not make a finding of abuse but had a “lingering doubt“. Based on this doubt, the judge discharged an order granting the husband access to his daughter. The Full Family Court upheld the trial judge’s decision.

The High Court also dismissed the appeal and stated the test is best expressed so that the court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse. The court prioritised the child’s best interests by finding that the potential risk to the child outweighed the father’s right to access.

In M & M, the High Court reaffirmed that the best interests of the child are paramount and that the court is concerned to make such an order for custody or access which will, in the opinion of the court, best promote and protect the interests of the child.

Application

The ‘unacceptable risk’ test is a key tool for courts in family law to assess potential harm to children. The principles from M & M have been applied in many subsequent family law and child protection cases when assessing and managing risk.

The test in M & M has come to be applied not just to allegations of sexual abuse but to cases in which there are allegations that a child is exposed to risk of harm. The case introduced the ‘unacceptable risk’ test, which involves the unacceptable harm to a child, which the court could use to make orders when there was a significant possibility of harm.

About Post Author

Brian Walker

B.Acc., GradDipLegPrac, Juris Dr
Barrister & Accountant.
Former Criminal Defence Solicitor. Former Federal Prosecutor for the Commonwealth Director of Public Prosecutions prosecuting Commonwealth crimes relating to drugs and child exploitation. Former Australian Federal Police member litigating proceeds of crime matters. Former Australian Taxation Office employee investigating offshore tax evasion matters.

Post Created by Jesslyn Duong, paralegal.

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