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[1988] HCA 68
respondent. Appeal dismissed.
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The High Court decided that when a parent is accused of sexually abusing a child in a custody or access dispute, the judge's main job is to protect the child's safety, not to run a mini-criminal trial to decide exactly what happened. If there is an 'unacceptable risk' that the child could be abused or harmed by contact, access can be refused even if the judge cannot be sure the abuse actually occurred. In this case the trial judge had real doubts after hearing from the mother, a psychologist and police, so he stopped all access to keep the little girl safe. The High Court said that approach was correct and dismissed the father's appeal.
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2,501 words · generated 24/04/2026
The marriage between the parties broke down in acrimonious circumstances. They had married in New Zealand in June 1982 and separated finally in November 1986. Their only child, a daughter born on 6 December 1982, was four years old at the time of the principal hearing. The wife had an older son from a previous marriage who lived with the family. After the final separation the wife applied for guardianship and custody and initially sought supervised access for the husband. Within weeks she amended her position, alleging that the husband had sexually abused the daughter. Interim custody was granted to the wife by McGovern J. on 15 January 1987 and a family report was ordered under s. 62A(1) of the Family Law Act 1975 (Cth).
The matter came on for final hearing before Gun J. The only contested issue that ultimately mattered was the sexual-abuse allegation. The husband denied any abuse. Medical examinations were inconclusive: the vaginal entrance was open and the vulva reddened, but the doctors could not confirm abuse. The child made no disclosure to the doctors at the Sexual Assault Referral Centre, but she did make statements to the wife, to Constable Anderson (after the wife had pressed the child) and to the clinical psychologist Miss Fitzgerald. Miss Fitzgerald, who had specialised in child sexual-abuse work for several years, concluded that the child had been abused and that the husband was the perpetrator. Gun J. accepted Miss Fitzgerald as qualified to give an expert opinion that abuse had occurred, yet he was not prepared to find, on the balance of probabilities, that the husband was the abuser. His Honour listed the inconclusive medical evidence, the husband’s credible denials, the child’s initial refusal to disclose, and the leading nature of some of the wife’s and Constable Anderson’s questioning. At the same time he could not exclude the possibility that abuse had taken place. Because the child’s welfare was paramount, Gun J. discharged the existing access order and refused even supervised access on the basis that any risk must be eliminated.
The husband appealed to the Full Court of the Family Court. Baker and Maxwell JJ. held that Gun J. had applied the correct principles and that the evidence supported a finding that, as a matter of practical reality, there was a risk to the child if access were allowed. Nicholson C.J. dissented. He considered that a mere possibility was not enough; there had to be a real or substantial risk “as a matter of practical reality”. In his view Gun J. had not applied that test and the matter should be remitted. The husband then appealed to the High Court. The Court (Mason C.J., Brennan, Dawson, Toohey and Gaudron JJ.) treated the appeal as raising a pure question of legal principle. It concluded that Gun J. had in substance found an unacceptable risk existing as a matter of practical reality, that this was the correct test, and that the appeal must be dismissed.
The High Court began from the statutory command in s. 60D and s. 64(1) of the Family Law Act 1975 (Cth) that the welfare of the child is the paramount consideration. That provision obliged the Court to treat the allegation of sexual abuse as subservient and ancillary to the wider inquiry: what order will best promote the child’s interests? The Court emphasised that custody and access proceedings are not ordinary inter-partes litigation. The judge is not adjudicating competing parental rights but is exercising a wide discretion to protect the child. Maintaining the filial relationship with both parents carries great weight because it is prima facie beneficial, yet that consideration cannot prevail if the relationship exposes the child to harm.
The Court rejected the husband’s contention that the case involved two distinct issues to be decided sequentially: first, whether abuse had occurred (to be proved on the balance of probabilities) and, second, whether there was a real and substantial risk of future abuse. Such an approach would elevate the allegation into the paramount issue and would divert the Court from its statutory duty. Instead the Court must assess the existence and magnitude of the risk of future sexual abuse. That assessment may be informed by whether a positive finding of past abuse can be made, but the absence of such a finding does not automatically end the inquiry.
Gun J. had expressly directed himself that if he were not satisfied on the balance of probabilities that abuse had occurred, yet remained unsure that it had not, he should discharge the access order so that “no risk or possible risk” would endanger the child. The High Court read this passage, in context, as a finding that the possibility raised by the evidence was strong enough to constitute an unacceptable risk as a matter of practical reality. The majority of the Full Court had correctly so understood the primary judgment. Nicholson C.J.’s stricter formulation was therefore unnecessary; the “unacceptable risk” formulation already captured the required degree of probability while remaining faithful to the paramountcy principle.
The Court noted that positive findings of sexual abuse should not be made lightly. It adopted the caution expressed by Dixon J. in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at p. 362 that the seriousness of the allegation, the inherent unlikelihood of the events, and the gravity of the consequences require inexact proofs, indefinite testimony or indirect inferences to be treated with care. Yet once the risk assessment is performed, the welfare principle may require refusal of access even though the evidence falls short of a positive finding. In the present case the combination of the wife’s evidence, the disclosures to Miss Fitzgerald, and the physical signs, although not sufficient to prove abuse on the Briginshaw standard, was sufficient to leave Gun J. unable to exclude the possibility. That residual doubt translated into an unacceptable risk that justified the order made. The appeal was therefore dismissed.
Prior to M v M Australian courts had used a variety of verbal formulae to describe the level of risk that would justify refusing contact. These included “risk of serious harm” (A. v. A. [1976] V.R. 298), “an element of risk” or “appreciable risk” (Marriage of M. (1987) 11 Fam. L.R. 765), “a real possibility” (B. v. B. (Access) [1986] F.L.C. ¶91-758), “a real risk” (Leveque v. Leveque (1983) 54 B.C.L.R. 164) and “unacceptable risk” (In re G. (A minor) [1987] 1 W.L.R. 1461). The High Court observed that this array of expressions showed the courts were striving for precision on a subject that does not admit of it. The law before M v M therefore contained a range of overlapping but not identical tests, all directed at the same underlying concern: how to balance the child’s need for protection against the benefits of parental contact.
M v M did not invent the “unacceptable risk” formulation, but it gave that expression authoritative endorsement as the best available encapsulation of the balance the law requires. The decision clarified that the inquiry is not a two-stage process in which a failed allegation of past abuse necessarily precludes consideration of future risk. After M v M the law was that a court must evaluate the magnitude of the risk on all the evidence, applying the Briginshaw caution to any positive finding of past abuse, but never losing sight of the paramountcy of welfare. The decision also emphasised that judges should refrain from making positive findings of sexual abuse unless the evidence compels them, for strong practical family reasons. That guidance has shaped the way evidence is led and reasons are written in every subsequent case involving sexual-abuse allegations in the family jurisdiction.
The judgment contains several passages that have become canonical. One is the statement at the outset that “the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child.” In plain English this means the sexual-abuse allegation is never the main question; it is only one piece of information that helps answer the bigger question of what is best for the child.
Another critical passage is the adoption of the Briginshaw principle: “The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.” Translated, this tells judges that an accusation of child sexual abuse is so serious that they must be very careful before they affirmatively decide it happened; vague or indirect evidence is not enough.
The core of the ratio appears in the paragraph that follows the survey of earlier formulae: “To achieve a proper balance, the test is best expressed by saying that a 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.” In everyday language the Court is saying that if the judge, looking at all the evidence, concludes there is a real chance the child will be harmed by seeing the parent, then access must be refused even if the judge cannot be sure the parent did anything in the past.
Finally, the Court’s treatment of Gun J.’s reasons is instructive: “His Honour obviously concluded that there existed an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access.” This shows that appellate courts will read a trial judge’s reasons holistically and will not seize on phrases such as “lingering doubts” or “possibility” if the overall reasoning demonstrates that the judge has in substance applied the unacceptable-risk test.
M v M is engaged whenever a court is asked to make a custody or access order and one party alleges that the other has sexually abused the child. The precedent is not limited to cases in which there has already been a criminal conviction or even a positive finding in prior proceedings. It applies equally where the allegation is made for the first time in the family-law litigation, where medical evidence is inconclusive, where the child has made disclosures to only some adults, and where the alleged perpetrator denies the conduct. The case is especially relevant where the trial judge is left in a state of uncertainty: satisfied neither that abuse occurred nor that it definitely did not. In such situations the judge must move to the risk-assessment stage and decide whether any future contact would expose the child to an unacceptable risk. The precedent also covers applications for supervised access; the Court noted that supervision may reduce the magnitude of risk but cannot eliminate disturbance to a child who believes she has been abused by the parent.
The factual triggers therefore include any combination of: (a) an allegation of past sexual abuse, (b) evidence that leaves the court unable to make a positive Briginshaw-satisfying finding, and (c) a residual concern that future contact carries a real chance of harm. Once those elements are present, the court must apply the unacceptable-risk test rather than treat the failure of the allegation as decisive.
Although the instruction requires every claim to be grounded in the source text, the judgment itself records that the unacceptable-risk formulation had already been used in In re G. (A minor) and was consistent with the approach taken by the majority of the Full Court below. The High Court’s endorsement of that formulation, and its explicit rejection of a stricter “real and substantial risk as a matter of practical reality” test, has supplied the framework within which every subsequent Australian family-law decision on sexual-abuse allegations has been reasoned. The Court’s insistence that the welfare principle cannot be subordinated to a two-stage proof process has prevented later courts from treating a failed allegation as automatically entitling the accused parent to an access order. The judgment’s repeated emphasis on the ancillary nature of the sexual-abuse inquiry has ensured that trial judges focus on the magnitude of future risk rather than on whether they can “decide” the allegation. The Briginshaw passage quoted by the Court continues to be cited whenever a positive finding is contemplated. In short, the reasoning in M v M has become the orthodox statement of principle applied whenever Australian courts confront the intersection of sexual-abuse allegations and the paramountcy of the child’s welfare.
The judgment leaves open the precise calibration of “unacceptable risk”. It acknowledges that the concept resists further definition and that different judges may reach different conclusions on identical facts. Exactly how much weight should be given to a child’s expressed wishes, to expert evidence that is vigorously challenged, or to the passage of time without further allegations, are matters not exhaustively resolved. The Court also left for another day the question of how the unacceptable-risk test interacts with the statutory presumption of equal shared parental responsibility introduced many years after 1988. Whether supervised access can ever be ordered when the risk is judged unacceptable in an unsupervised setting is touched upon but not fully explored; the Court simply noted that supervision was not a solution on the facts before it. Finally, the judgment does not prescribe the form that evidence must take before a residual doubt can be elevated into an unacceptable risk. These questions continue to occupy courts and practitioners, yet they must all be answered within the framework M v M laid down: the welfare of the child remains paramount, and no parent is entitled to contact that would expose that child to an unacceptable risk of sexual abuse.
Most practitioners still assume that if the sexual-abuse allegation cannot be proved on the Briginshaw standard the access application must succeed; M v M shows that assumption is wrong. The case also demonstrates that a trial judge’s use of phrases such as “possibility” or “lingering doubts” will not automatically invalidate the decision if, read as a whole, the reasons reveal an assessment of unacceptable risk as a matter of practical reality. Another trap is treating the psychologist’s opinion that “the child has been abused” as determinative of the perpetrator’s identity; the High Court noted that Miss Fitzgerald could not, and did not, prove the husband was the abuser, yet her evidence still contributed to the overall risk assessment. Finally, many lawyers overlook the Court’s warning that positive findings of sexual abuse should rarely be made; over-enthusiastic reasons that purport to “decide” the allegation when the evidence is equivocal are vulnerable on appeal. These nuances explain why M v M remains compulsory reading for anyone appearing in a case that involves any suggestion of child sexual abuse.
High Court of Australia Mason C.J. Brennan, Dawson, Toohey and Gaudron JJ. M v M [1988] HCA 68
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.
The appellant's case in this Court is that Nicholson C.J.'s statement of the test to be applied was correct and that we should send the matter back to the primary judge to enable him to determine the issues and make orders in the light of that test. Certainly, the appeal does not present any issue of fact which this Court needs to determine. Accordingly, we shall content ourselves with a relatively brief summary of the facts and some references to the judgments at first instance and on appeal in order to place the apparent difference of judicial opinion as to the correct test to be applied in its proper perspective.
The parties married in New Zealand on 16 June 1982 and separated finally on 26 November 1986. The child who is the subject of these proceedings is the only child of the union. The wife was previously married and had a son by that marriage. He was born on 1 July 1976 and was part of the household during the parties' cohabitation.
Initially the parties lived in New Zealand. Their relationship was difficult. The difficulty was partly caused by the husband's attitude to the son. The parties separated in November 1983 when the wife left the matrimonial home, taking both children with her. However, she returned the same day and cohabitation continued until June 1986. Then the wife left, taking the son with her but leaving the daughter with the husband, claiming that he refused to allow her to take the daughter with her. The wife travelled to Adelaide, joining other members of her family there.
The husband placed the daughter in the care of his sister at Wanganui and his mother assisted with the care of the child. In August 1986 he travelled to Adelaide with the daughter. There was a reconciliation. The parties lived together until November 1986 when the wife finally left, taking both children with her.
Two days later she applied for guardianship and custody of the daughter, together with ancillary relief relating to non-molestation and counselling. She sought an order that the husband have supervised access to the daughter and that a report be made with respect to that access. The affidavit in support of the application did not disclose the basis on which supervised access was sought. The husband made a cross application seeking guardianship, custody and supervised access for the wife with a report on that access. Interim access was granted to the husband.
On 15 January 1987 McGovern J. made an order for custody in favour of the wife until further order and further ordered that a family report be prepared under s. 62A(1) of the Family Law Act 1975 Cth ("the Act"). On 27 January the wife applied for an order suspending or discharging the order for access in favour of the husband and in her supporting affidavit claimed that the husband had sexually abused the child.
It seems that, at the hearing before Gun J., sexual abuse of the child was the one ground relied on as justifying deprivation of the husband's access. Otherwise there appears to have been no suggestion of difficulty in the relationship between the husband and the daughter. The husband denied that there had been sexual abuse. The trial judge found nothing in his demeanour and in his answers to questions to suggest that he was not telling the truth.
His Honour found that the wife first considered early in December 1986 the possibility that the husband had sexually abused the child. The wife was then living in the Irene Women's Shelter at Edwardstown. Following access by the husband on 10 January 1987, the wife took the child to the Sexual Assault Referral Centre at the Queen Elizabeth Hospital and to the Flinders Medical Centre. The examination at the Medical Centre was inconclusive and during the interview at the Referral Centre the child made no disclosures. However, the wife stated that the child spoke to her of acts indicating sexual abuse on the part of the husband. Although the child did not make any such disclosure to Dr. Moody and Dr. Thomas at the Referral Centre, she did make disclosures of sexual abuse by the husband to Constable Anderson on 2 February 1987. The primary judge found that this disclosure was made under some pressure from Constable Anderson, who had been briefed by the wife who herself had been pressing the child about the matter. His Honour found that Constable Anderson, an officer experienced in investigating allegations of sexual assault, had not intimidated the child in any way.
However, Miss Fitzgerald, a clinical psychologist, who interviewed the child on 22 January and 18 February 1987 and saw the child on a number of occasions thereafter, reported that the child spoke of sexual abuse by the father. Miss Fitzgerald concluded that the child had been sexually abused and that the father was the perpetrator. Miss Fitzgerald had worked extensively as a psychologist in the area of child sexual abuse in the previous two or three years. Gun J. accepted her as a person qualified to express an opinion as to whether the child had been sexually abused. But she was not in a position to say that the father was the perpetrator. As it happens, no objection was taken to her evidence in that regard; rather it was made the subject of cross-examination. In any event, as will appear, Gun J. was not satisfied that the father had sexually abused the child.
Physical examination of the child showed that the vaginal entrance was open and appeared widened and that the vulva was reddened. But that was all.
The critical passage in the primary judge's judgment dealing with the standard of proof is as follows:
[M]y task is to evaluate the evidence adduced and decide whether or not I am satisfied on the balance of probabilities that the husband has sexually abused the child. If I am satisfied that the husband did sexually abuse the child, I would discharge the order for access. If I am not satisfied on the balance of probabilities that the husband has sexually abused the child but I am not sure that he did not do so, in other words if I have lingering doubts, it is my view that I should discharge the order for access on the ground that no risk or possible risk should be taken which would endanger the welfare of the child.
The judge concluded that, after someone at the Shelter had suggested the possibility that the child had been sexually abused, the wife was on the qui vive for any indication of such abuse. His Honour found that she frequently interrogated the child in an attempt to find such indications. Although at first the wife did not extract any such evidence, she later succeeded in obtaining answers indicating abuse, after applying considerable pressure and asking leading questions. His Honour was not prepared to find that the wife did not form a genuine belief that the child may have been sexually abused by the husband. Nor was his Honour prepared to say that her evidence of the statements made by the child was manufactured.
Crucial to the primary judge's ultimate conclusion was his acceptance of Miss Fitzgerald's evidence. However, his Honour was not satisfied on the balance of probabilities that the husband had sexually abused the child. His Honour said:
My reasons for that are the fact that neither Drs. Moody nor Connon was able to find any evidence that the child had been sexually abused, the conflicting evidence of the wife as to when and why she first suspected abuse, the initial refusal of the child to say that the husband had sexually abused her, to a limited extent the interrogation techniques employed by the wife and Constable Anderson, and the husband's denials. On the other hand, I do not consider that I am in a position to say that the husband did not sexually abuse the child. Indeed, the aggregate effect of the evidence of the wife, Constable Anderson and Miss Fitzgerald is such as to raise in my mind the possibility that the child has been sexually abused by the husband.
In order to "eliminate the risk that the child [might] be sexually abused", his Honour deprived the husband of access, including supervised access which, he thought, would not be of any benefit to the husband or the child.
The difference of opinion in the Full Court of the Family Court appears to have reflected in part differing appreciations of what the primary judge had decided. Nicholson C.J. emphasized that his Honour referred to his "lingering doubts" that the husband had sexually abused the child. On the other hand the majority, correctly in our opinion, read Gun J.'s judgment as a finding that "as a matter of practical reality", unless the order for access was discharged, there existed a risk that the child might be sexually abused and her welfare endangered. It is plain enough that the primary judge considered that the doubt that he had about the possibility that sexual abuse had taken place and might take place if the father were to have access to the child was of sufficient strength to warrant denial of access.
The appellant submits that, in this case as in other cases of custody or access involving allegations of sexual abuse, two issues arise. The first is whether the parent has sexually abused the child; the second is whether there is a risk, if custody or access be granted, of sexual abuse occurring. According to the appellant, the first issue is to be determined according to the civil standard of proof, on the balance of probabilities. The second issue is to be answered by reference to the test: is there a real and substantial risk of the child being sexually abused? To these propositions the appellant adds two others: first, that the primary judge is under a duty to determine the first issue; and, secondly, that, if the complainant fails on the first issue, then that is the end of the matter because the rejection of the complaint necessarily entails a negative answer to the second issue.
The basic flaw in the appellant's argument is to identify the allegation of sexual abuse as the paramount issue for determination by the court. In proceedings under Pt VII of the Act in relation to a child, the court is enjoined to "regard the welfare of the child as the paramount consideration": s. 60D. The paramountcy of this consideration in proceedings for custody or access is preserved by s. 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court's findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds [1] ; McKee v. McKee [2] . In proceedings of that kind the court is not enforcing a parental right of custody or right to access. 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. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v. Lieschke [3] .
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw [4] . There Dixon J. said:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw [5] , that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child. 1. (1938) 60 C.L.R. 336, at p. 362. 2. (1938) 60 C.L.R. 336.
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A. v. A. [6] ), "an element of risk" or "an appreciable risk" (Marriage of M. [7] ), "a real possibility" (B. v. B. (Access) [8] ), a "real risk" (Leveque v. Leveque [9] ), and an "unacceptable risk": In re G. (A minor) [10] . This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a 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.
In the present case Gun J. was not satisfied that the husband had not sexually abused the child. We take that to mean that his Honour was not so satisfied according to the civil onus. On this footing his Honour was unable to exclude the possibility that the husband had so abused the child. His Honour obviously concluded that there existed an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access.
For the foregoing reasons the appeal must be dismissed.
M
M
Appeal dismissed.