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) [2007] FamCA 1083 and Raymond v Harold [2009] 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 [2003] 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.
The definition of “family violence” has got so wide under the new Act that the applicant rarely has any difficulty satisfying the court that there has been some going on. One harsh word about the mother-in-law or a barney over the use of the family credit card and that part of the application is satisfied.The other part where the court thinks they are “likely to do so again” I find hard to understand. What is a reasonable level of satisfaction when it comes to a prediction about something that may happen in the future? Can you reverse the “Briginshaw” test so that a court can consider the seriousness of the consequences of the parties if an order is/isn't made, (eg. if the complaint is of nuisance value the evidence of need for order is greater, and if the complaint involves allegations of serious violence the court doesn't need to be satisfied that the risk is as great so long as it exists. Or if the order would only prevent the defendant from doing what would be a crime anyway, the need for an order doesn't need to be demonstrated as highly as when the order is going to prevent someone from living in their home, etc.)Or is that putting a cart before a horse? Either way, the law now requires magistrates to stare into a crystal ball.Go Pies!
Not much I can say about the first part of your comment — but, yes, the definition certainly is broader than it was!As for prediction…although it's a tough thing to ever do with certainty, courts have to grapple with this all the time.Every sentencing decision partly anticipates what an accused person might do in the future. The standard refrain is that past behaviour is not necessarily indicative of future criminal conduct. (If I remember rightly my criminology lectures under Arie Freiberg, the criminologists are quite confident that the predicative nature of future conduct becomes increasingly accurate as a criminal history expands.)On a slight tangent, Kaye J explained some of the problems with crystal-ball gazing in R v Flaherty (No 2) (2008) 19 VR 305 when he considered the then-new provision in the Sentencing Act about the but-for-your-plea-your-penalty-would-have-been 'x' provision, s 6AAA.And of course bail decisions are largely an exercise in prediction, gauging what is an 'acceptable' risk.So though yes it can be difficult, it's not an unusual exercise for courts. But it is still a marked departure from the centuries of tradition where The Law only considered historical conflicts rather than potential future ones…
Then there is interlocks, sex offender registration, diversion, licence restorations and (as you said) bail. When it comes to relationship drama not even the people involved know what is going to happen next. Maybe judges and magistrates should be issued with a oiuja board and a deck of tarot cards when they are appointed.(And I accept your tacit acknowledgment of Collingwood's inevitable superiority on the weekend).
Elucubrator,I don't think Kirby v Phelan is as strong as you suggest. At the time of the decision, s13A of the Crimes (Family Violence) Act 1987 only suspended the rules of evidence in proceedings invovling child complainants or interim orders where the applicant was a person other than the aggrieved family member. So the hearsay evidence was clearly inadmissible in that case on the law as it then stood.As far as I know, the Supreme Court hasn't revisited the issue since s13A was expanded by the Magistrates' Court (Family Violence) Act 2004, or its equivalent in s65(1) of the Family Violence Protection Act 2008.Of course, evidence that complies with the rules of evidence will often be stronger, as many of the rules of evidence were designed to exclude evidence that is unreliable or cannot be adequately tested.In terms of Briginshaw, the seriousness of the issues might point both ways. Intervention orders are, of course, civil orders designed to protect a person, rather than as punitive orders (though obviously, they can be significant impositions on liberty and property rights which look very much like punishment). The bail analogy is a good one, though.
Hey Anon.You're spot on about Kirby v Phelan. I probably didn't make it as clear as I hoped, but in any event, as you rightly point out, the legislative framework was much narrower.You're right about the seriousness of the issue pointing both ways, and it's important to remember that this legislation is intended to provide protection to people who traditionally have been pretty vulnerable. My own experience is that most courts are very conscious of the competing tensions and do their utmost to resolve them appropriately.I think the biggest application for the Briginshaw concept is at the interim order stage, when a respondent might be subject to some fairly major consequences. It's the frequent ex parte nature of those applications that can make them so problematic for everyone involved.
As Heerey J noted quite pointedly in Granada Tavern v Smith [2008] FCA 646, Briginshaw has been superseded by s140(2) of the UEL. There's a specific reference in s140(2) to the 'nature of the cause of action', which I think would involve consideration of consequences of the ruling.On my reading, s140(2) isn't affected by s65(1), as I think s65(1) that is limited to how the court informs itself, i.e. how matters are proved, rather than whether or not they are proved. The provision considered in Pearce v Button, by contrast, specifically refers to the 'rules of evidence for proving any matter'.
The definition of \”family violence\” has got so wide under the new Act that the applicant rarely has any difficulty satisfying the court that there has been some going on. One harsh word about the mother-in-law or a barney over the use of the family credit card and that part of the application is satisfied.The other part where the court thinks they are \”likely to do so again\” I find hard to understand. What is a reasonable level of satisfaction when it comes to a prediction about something that may happen in the future? Can you reverse the \”Briginshaw\” test so that a court can consider the seriousness of the consequences of the parties if an order is/isn't made, (eg. if the complaint is of nuisance value the evidence of need for order is greater, and if the complaint involves allegations of serious violence the court doesn't need to be satisfied that the risk is as great so long as it exists. Or if the order would only prevent the defendant from doing what would be a crime anyway, the need for an order doesn't need to be demonstrated as highly as when the order is going to prevent someone from living in their home, etc.)Or is that putting a cart before a horse? Either way, the law now requires magistrates to stare into a crystal ball.Go Pies!
Not much I can say about the first part of your comment — but, yes, the definition certainly is broader than it was!As for prediction…although it's a tough thing to ever do with certainty, courts have to grapple with this all the time.Every sentencing decision partly anticipates what an accused person might do in the future. The standard refrain is that past behaviour is not necessarily indicative of future criminal conduct. (If I remember rightly my criminology lectures under Arie Freiberg, the criminologists are quite confident that the predicative nature of future conduct becomes increasingly accurate as a criminal history expands.)On a slight tangent, Kaye J explained some of the problems with crystal-ball gazing in R v Flaherty (No 2) (2008) 19 VR 305 when he considered the then-new provision in the Sentencing Act about the but-for-your-plea-your-penalty-would-have-been 'x' provision, s 6AAA.And of course bail decisions are largely an exercise in prediction, gauging what is an 'acceptable' risk.So though yes it can be difficult, it's not an unusual exercise for courts. But it is still a marked departure from the centuries of tradition where The Law only considered historical conflicts rather than potential future ones…
Then there is interlocks, sex offender registration, diversion, licence restorations and (as you said) bail. When it comes to relationship drama not even the people involved know what is going to happen next. Maybe judges and magistrates should be issued with a oiuja board and a deck of tarot cards when they are appointed.(And I accept your tacit acknowledgment of Collingwood's inevitable superiority on the weekend).
Elucubrator,I don't think Kirby v Phelan is as strong as you suggest. At the time of the decision, s13A of the Crimes (Family Violence) Act 1987 only suspended the rules of evidence in proceedings invovling child complainants or interim orders where the applicant was a person other than the aggrieved family member. So the hearsay evidence was clearly inadmissible in that case on the law as it then stood.As far as I know, the Supreme Court hasn't revisited the issue since s13A was expanded by the Magistrates' Court (Family Violence) Act 2004, or its equivalent in s65(1) of the Family Violence Protection Act 2008.Of course, evidence that complies with the rules of evidence will often be stronger, as many of the rules of evidence were designed to exclude evidence that is unreliable or cannot be adequately tested.In terms of Briginshaw, the seriousness of the issues might point both ways. Intervention orders are, of course, civil orders designed to protect a person, rather than as punitive orders (though obviously, they can be significant impositions on liberty and property rights which look very much like punishment). The bail analogy is a good one, though.
Hey Anon.You're spot on about Kirby v Phelan. I probably didn't make it as clear as I hoped, but in any event, as you rightly point out, the legislative framework was much narrower.You're right about the seriousness of the issue pointing both ways, and it's important to remember that this legislation is intended to provide protection to people who traditionally have been pretty vulnerable. My own experience is that most courts are very conscious of the competing tensions and do their utmost to resolve them appropriately.I think the biggest application for the Briginshaw concept is at the interim order stage, when a respondent might be subject to some fairly major consequences. It's the frequent ex parte nature of those applications that can make them so problematic for everyone involved.
As Heerey J noted quite pointedly in Granada Tavern v Smith [2008] FCA 646, Briginshaw has been superseded by s140(2) of the UEL. There's a specific reference in s140(2) to the 'nature of the cause of action', which I think would involve consideration of consequences of the ruling.On my reading, s140(2) isn't affected by s65(1), as I think s65(1) that is limited to how the court informs itself, i.e. how matters are proved, rather than whether or not they are proved. The provision considered in Pearce v Button, by contrast, specifically refers to the 'rules of evidence for proving any matter'.
Jeremy, I wasn't aware of Granada Tavern v Smith.I rather like the part of the headnote that reads:“EVIDENCE — proper application of Briginshaw principle — isn’t there something in the Evidence Act about this?”I can't see that Granada Tavern is as strong as saying that Briginshaw is superseded by s 140(1), but it does make the similar point made in Qantas Airways Ltd v Gama (2008) 167 FCR 537 at [139] and Johnson v Page [2007] FamCA 1235 at [72] that the better approach is for a court to expressly refer to s 140(1) rather than Briginshaw.A couple of cases suggest that s 140 doesn't cover the field, and the common law can still have some role to play. One I came across is Re W (Sex Abuse: Standard of Proof) (2004) 32 Fam LR 249 at [14] – [15]. More recently, in ASIC v Fortescue Metals Group (No 5) (2009) 264 ALR 201 at [72] – [84] the Federal Court considered s 140, Briginshaw and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd relevant.And just recently, in Calliden Group Ltd v Australian Unity Ltd [2010] NSWSC 263[179] at the NSW Supreme Court considered that s 140(2) preserves Briginshaw!I'm interested in your thoughts about the interplay between s 65(1) in the Family Violence Protection Act and s 140 of the Evidence Act? I reckon a court could and — in appropriate cases — would take into account the way evidence is adduced when considering if it is then satisfied the application is made out I think your point about each being separate provisions with different work to do is a good one — but I see them as working together, rather than being exclusive.
Jeremy, I wasn't aware of Granada Tavern v Smith.I rather like the part of the headnote that reads:“EVIDENCE — proper application of Briginshaw principle — isn’t there something in the Evidence Act about this?”I can't see that Granada Tavern is as strong as saying that Briginshaw is superseded by s 140(1), but it does make the similar point made in Qantas Airways Ltd v Gama (2008) 167 FCR 537 at [139] and Johnson v Page [2007] FamCA 1235 at [72] that the better approach is for a court to expressly refer to s 140(1) rather than Briginshaw.A couple of cases suggest that s 140 doesn't cover the field, and the common law can still have some role to play. One I came across is Re W (Sex Abuse: Standard of Proof) (2004) 32 Fam LR 249 at [14] – [15]. More recently, in ASIC v Fortescue Metals Group (No 5) (2009) 264 ALR 201 at [72] – [84] the Federal Court considered s 140, Briginshaw and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd relevant.And just recently, in Calliden Group Ltd v Australian Unity Ltd [2010] NSWSC 263[179] at the NSW Supreme Court considered that s 140(2) preserves Briginshaw!I'm interested in your thoughts about the interplay between s 65(1) in the Family Violence Protection Act and s 140 of the Evidence Act? I reckon a court could and — in appropriate cases — would take into account the way evidence is adduced when considering if it is then satisfied the application is made out I think your point about each being separate provisions with different work to do is a good one — but I see them as working together, rather than being exclusive.
I certainly don't see s140(2) as inconsistent with Briginshaw. I assume they are intended to say the same thing. The main significance of s140(2), though, is that it is amenable to statutory interpretation, including Charter interpretation, e.g. in relation to the right against unlawful interference with reputation.I agree that s140(2) UEL and 65(1) FVPA work together and may overlap on some aspects of fact-finding. According to s8 of the UEL, the FVPA wins in the case of an inconsistent overlap…
I certainly don't see s140(2) as inconsistent with Briginshaw. I assume they are intended to say the same thing. The main significance of s140(2), though, is that it is amenable to statutory interpretation, including Charter interpretation, e.g. in relation to the right against unlawful interference with reputation.I agree that s140(2) UEL and 65(1) FVPA work together and may overlap on some aspects of fact-finding. According to s8 of the UEL, the FVPA wins in the case of an inconsistent overlap…