Briginshaw v Briginshaw

60 CLR 336

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(Judgment by: Rich J.)

Briginshaw v.
Briginshaw

Court:

Judges: Latham CJ
Rich J
Starke J
Dixon J
McTiernan J

Judgment date: 18, 19 May, 30 June 1938

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Judgment by:
Rich J.

The Divorce and Matrimonial jurisdiction of the Supreme Court of Victoria depends upon legislation which substantially reproduces the English legislation of 1857-1858, 20 and 21 (Vict), c. 85; and 21 and 22 (Vict), c. 108. By s 80 of the Marriage Act 1928, which is taken from s 29 of the English Act, it is provided that -- "Upon any petition for dissolution of marriage, it shall be the duty of the court to satisfy itself, so far as it reasonably can, as to the facts alleged ... " The phrase "satisfy itself so far as it reasonably can" obviously reflects the influence of the common expression "reasonable satisfaction." In a serious matter like a charge of adultery the satisfaction of a just and prudent mind cannot be produced by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion. The nature of the allegation requires as a matter of common sense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of inference, and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion. But to say this is not to lay it down as a matter of law that such complete and absolute certainty must be reached as is ordinarily described in a criminal charge as "satisfaction beyond reasonable doubt." A petition for dissolution of marriage is not quasi criminal, whatever the grounds -- Mordaunt v Moncreiffe , (1874) LR 2 H.L. Sc. 374; Branford v Branford , (1878) LR 4 P D. 72, 73; Sims v Sims , (1878) 1 SCR (N.S ) NSW D. 1, 2, 3; Tickner v Tickner , [1937] (NZ) LR 802, 805.

The appeal in the present case raises what is purely a question of fact. In deciding it Martin, J, gave effect to the burden of proof, and used expressions which are said to show that if he had not applied the criminal standard of proof he might or would have found that adultery had been proved. I do not think that this is a correct interpretation of his judgment. No doubt he demanded a high degree of certainty, and it is not surprising that the inclination of his mind was towards the view that the balance of probabilities made it more likely than not that adultery had been committed. But I gather from his judgment that he did not feel reasonably satisfied that adultery had been committed, that he had no definite and clear opinion of the truth of the charge. We had the benefit of a full discussion of the evidence in the case, and I must acknowledge that my mind felt the full force of the considerations advanced by Counsel for the appellant that as a court of Appeal we should reverse the finding of fact. But in spite of what Martin, J, says about the demeanour of the witnesses, the personality and the characteristics of the parties and of the witnesses remain a very important factor in considering such a case as the present, depending as it largely does upon admissions alleged to have been made out of court and on admissions made in the witness-box. I have not been able on the mere printed record to satisfy myself that adultery was in fact committed.