Sections 53 and 74 of the Family Violence Protection Act 2008 provide that a court must be satisfied on the balance of probabilities that an interim or final family violence protection orders is justified.
The police frequently apply for these orders to protect an affected family member. Because police tend to be involved in the more serious complaints of family violence, criminal conduct is often alleged against a respondent — though for various reasons, they aren’t always charged.
That doesn’t necessarily mean that family allegations founded on criminal conduct must only ‘just’ be proved on the balance for a court to be satisfied a family violence protection order should be made.
Briginshaw v Briginshaw (1938) 60 CLR 336 discussed the civil standard of proof in a divorce case. Before no-fault divorce someone who wanted a divorce had to prove there were grounds for the divorce — typically something tawdry like adultery or desertion.
An oft-quoted canon from that case is this part of Dixon J’s judgment, at 361–2:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. 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.
What this means in essence is that it’s not enough to simply conclude that a particular issue is 51% likely versus 49% unlikely, and so it’s proved on the balance of probabilities.
Rather, the tribunal must be positively persuaded of the fact to be proved, and should take into account the nature and consequence of that fact or facts — particularly when those facts allege criminal conduct.
So if the conduct relied in a family violence protection order application is criminal conduct, the court should require something more compelling to satisfy it on the balance of probabilities that the order is warranted.
This principle was applied by the family court in two cases involving allegations of family violence interwoven with intervention order applications under the now-repealed Crimes (Family Violence) Act 1987: Adams v Adams (No 8 final orders)  FamCA 1083 and Raymond v Harold  FamCA 155.
Additionally, section 65(1) of the Act provides:
Subject to this Act, in a proceeding for a family violence intervention order the court may inform itself in any way it thinks fit, despite any rules of evidence to the contrary.
That doesn’t mean the rules of evidence don’t apply in such proceedings — merely that a court might choose to inform itself other than in accordance with those rules if it thinks it should. (Evidence Act 2008 s 190(3) also provides for a similar result in certain circumstances.)
In Pearce v Button (1986) 8 FCR 408; (1986) 65 ALR 83 the Full Court of the Federal Court considered similar provisions and concluded they weren’t confined to dispensing with the rules of evidence just for formal matters…but courts should be cautious about dispensing with the rules on contentious and disputed issues — particularly when it would deny the other party the opportunity to challenge and test the evidence and resulted in denying them procedural fairness.
And our own Supreme Court held that hearsay evidence in an intervention order application could still be inadmissible, despite a provision like s 65(1): Kirby v Phelan  VSC 43.
And of course, the court is entitled to consider the weight of evidence received contrary to the rules of evidence when it considers if it’s satisfied of the facts that must be proved. And that might also properly come into play when deciding if the facts in issue are established in accordance with the Briginshaw standard.
For that reason, whenever possible, a party should look for evidence that complies with the rules of evidence, both to maximise the strength of its case and to minimise the potential for injustice — which might in turn result in appeal or review.