Vexatious proceedings

  • Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence – A National Legal Response, Report 114 (2010).

    This report identifies that ‘vexatious applications in protection order proceedings under state and territory family violence legislation can be a means for a person to misuse the legal system to harass or intimidate a victim of family violence. In addition, because the existence of certain kinds of protection order is a relevant consideration to be taken into account by a court when making orders under the Family Law Act, vexatious applications for protection orders have the potential to affect the operation of both the family law and state and territory family violence regimes.’ (p473)

    [18.28] False evidence given in protection order proceedings: State and territory family violence legislation generally deals with persons who give false evidence or make false allegations or denials by using provisions relating to vexatious applications or other legislation protecting court processes. A person who gives false evidence may also be charged with a number of offences, including perjury, false swearing and false testimony.

    [18.29] (p837) In some circumstances, a court’s ability to award costs against a person who brings an application for, or to revoke, a protection order that is ‘deliberately false’ or made in ‘bad faith’ is linked to vexatious application provisions.

    [18.224] (p880) Vexatious litigation may arise in a number of ways in protection order proceedings. For example, repeated applications for a protection order may be made against the same person based on the same or similar allegations and by the respondent to vary or revoke a protection order. Cross applications for protection orders may also be made without legal grounds. [18.225] While such applications may not, in themselves, be vexatious, where they are repeated or made without legal grounds, concerns arise that people who have committed family violence may use the legal system to further harass, control and abuse the victim.

    [17.29] (p764) It is particularly important that if family violence matters have been litigated that they are not re-litigated in another proceeding. Where family violence is at play such re-litigation can be a tactic of further abuse.
  • Chisholm, Richard, ‘Family Courts Violence Review: A Report’ (Canberra: Attorney-General’s Department, 2009).
    This report considers extensively the issue of family violence in the family law system. Of relevance see ‘4.6 – Other Matters’ (p 172) which considers the abuse of litigation and s 118 Family Law Act 1975 (Cth)) (note that s118 was amended in 2012 and s102QB Family Law Act 1975 (Cth) now governs the making of vexatious litigation orders.) The author notes – ‘Some submissions referred to the use of litigation as a vehicle for harassment of the other party. In some cases, no doubt, litigation which appears to one party as a vehicle for harassment will be considered by the other party to be reasonable and necessary, for example to enforce parenting orders where the other party is frequently in breach. However it is certainly possible for litigation to be abused.
  • (The findings of the report were summarised concisely in ‘Family Law Council, “Litigants in Person: A Report to the Attorney-General”)

    The methodology is set out at p28-32. This study employed quantitative and qualitative approaches, primarily questionnaires and semi-structured interviews with judges, judicial registrars, registrars and litigants in person; the researchers interviewed a small number of legal practitioners, and convened focus groups with various groups.

    See in particular at p 34, where the views of judges, judicial registrars and registrars are considered. Participants who were interviewed believed that ‘A significant number (of self-represented litigants) are considered to be dysfunctional ‘serial’ litigants, many of whom may be emotionally disturbed or mentally ill. Some serial litigants would seem to be vexatious’. See further at pp 52-53 where the effects of the family law system on litigants in person is discussed: ‘The system is not adequately equipped to deal with litigants in person whose personalities are such that they do not accept that a decision may not go their way. In fact the system allows them to persist with repeated applications unless they are declared vexatious. There is a small percentage who keep coming back because they do not believe that the system is right or that they have not had their say. There is a group of “problem litigants”, usually associated with children’s matters. Litigants in person may lodge lengthy affidavits.’
  • This commissioned report extensively considers the issue of litigants in person in the family law context. The report was written in the broader context of the number of self-represented litigants increasing. It contains discussion of the reasons for the increase in unrepresented litigants as well as general characteristics of unrepresented litigants.

    See in particular at p 25 where s 118 of the Family Law Act 1975 (Cth) is discussed (note that s118 was amended in 2012 and s102QB Family Law Act 1975 (Cth) governs the making of vexatious litigation orders.)

    ‘In many instances a litigant may be intransigent or genuinely disgruntled and not necessarily vexatious. The judge has authority to control proceedings if the unrepresented litigant uses cross examination of the former spouse as an opportunity for harassment. However, judges have to balance concerns about harassment with the unrepresented litigant’s right to put evidence to the court, and they generally attempt to avoid any perceptions of bias.

    See further at p 72 – ‘The vexatious, persistent or relentless unrepresented litigant, who chooses to proceed unrepresented, must be distinguished from the first time unrepresented litigant with no knowledge or experience of court procedures and family law. However, even this apparently polarised example is fraught with difficulty. Unrepresented litigants vary in their demeanour, background, knowledge, skills, personality, knowledge of English, culture, intentions, socio-economic status and more. This diversity illustrates the fundamental need for flexibility and adaptability by courts and legal service providers when dealing with unrepresented litigants.’
  • Kaspiew, Ray, et al, ‘Evaluation of the 2012 Family Violence Amendments’ (Synthesis Report, Australian Institute of Family Studies, 2015).
    This report sets out the overall findings of the Evaluation of the 2012 Family Violence Amendments to the Family Law Act 1975 (Cth), which substantively came into effect on 7 June 2012. The report is based on data from 12,198 parents (pre-reform: n = 6,119, post-reform: n = 6,079) (ESPS), 653 family law system professionals (RFV), 1,892 family law court files (pre-reform: n = 895, post-reform: n = 997) and other data. See especially [7.3.3] (p68-70) noting a range of studies and analyses highlighting the potential for legal systems and processes to be used as a means of perpetuating harassment, including through litigation over parenting arrangements and other separation-related matters (at p69).
  • Kaspiew, Rae, et al, ‘Responding to Family Violence: A Survey of Family Law Practices and Experiences’ (Report, Australian Institute of Family Studies, October 2015).

    This report presents the findings of Responding to Family Violence: A Survey of Family Law Practices and Experiences (Survey of Practices). This report draws on surveys and interviews with professionals (n653) (judicial officers and registrars, lawyers and non-legal family law professionals) working across the family law system and telephone interviews with parents (n2,473) who used family law system services in the period of approximately 12 months preceding August 2014.

    See in particular at p 187, where concerns about false, frivolous or vexatious allegations of family violence are identified. The report states: ‘it should be noted that such concerns have been longstanding and mirror a persistent belief held by about half of the community that women make up false allegations of family violence to obtain advantage in “custody proceedings”’.