Briginshaw test and what it means for family law

Briginshaw test and what it means for family law

“There is no mathematical scale according to which degrees of certainty of intellectual conviction can be computed or valued. But there are differences in degree of certainty, which are real, and which can be intelligently stated, although it is impossible to draw precise lines, as upon a diagram, and to assign each case to a particular subdivision of certainty. No court should act upon mere suspicion, surmise or guesswork in any case. In a civil case, fair inference may justify a finding upon the basis of preponderance of probability. The standard of proof required by a cautious and responsible tribunal will naturally vary in accordance with the seriousness or importance of the issue—See Wills’ Circumstantial Evidence (1902), 5th ed., p. 267, note n: “Men will pronounce without hesitation that a person owes another a hundred pounds on evidence on which they certainly would not hang him, and yet all the rules of law applying to one case apply to the other and the processes are the same.”

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The Briginshaw test is applied in family law, particularly where the court is asked to make a finding regarding a serious allegation, such as sexual abuse of a child. A mere allegation, without more, is unlikely to result in such a finding.

The family law courts remain courts of law and evidence and in the absence of evidence in support of allegations, the person making the allegation is nearly always disappointed.

If you need help with your family law case, contact us at Freedom Law today. We specialise in preparing cases for hearings at short notice all over Australia and we are happy to provide you with a fixed fee quote where possible. Our team members can assist you with your enquiry.


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