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The Family Law Amendment Act 2023 (Cth) repealed the previous subsections 45A (Summary Decrees) and 102QA, and inserted a new overarching Part XI, Division 1A ‘overarching purpose of the family law practice and procedure.’ Part XIB of the Family Law Act 1975 (Cth) (FLA) (there is currently no equivalent in Western Australia) deals specifically with decrees and orders relating to unmeritorious, harmful, and vexatious proceedings. For the purposes of Part XIB, a ‘harmful proceedings order’ made under section 102QAC, prohibits a party from instituting proceedings without first obtaining leave of the court, if the court is satisfied that there are reasonable grounds that the other party ‘would’ suffer harm (section 102QAC(1)). The court also may have regard to the cumulative effect, or any potential cumulative effect, of any harm (section 102QAC(3)). A person who is subject to a harmful proceedings order needs to satisfy the court that their application has reasonable prospects of success and is not vexatious, frivolous, or an abuse of process (section 102QAG)(having weighed it against the potential harm the application may have on the other party), before it can be filed and served.
Note also that the Family Law Amendment Act 2023 (Cth) introduced Division 1A, in Part XI, which highlights the overarching purpose of the family law practice and procedure provisions.
The overarching purpse of the family law practice and procedure ( Section 95 ) provisions is to facilitate the just resolution of disputes:
1.
in a way that ensures the safety of families and children
2.
in relation to proceedings under the Family Law Act in which the best interests of a child are the paramount consideration – in a way that promotes the best interests of the child
3.
according to law, and
4.
as quickly, inexpensively and efficiently as possible
5.
This is accompanied by a statutory duty on parties and their legal representatives to conduct proceedings in a way that is consistent with the overarching purpose ( section 96 ). Cost orders can be made against parties and legal representatives who are found to have breached the duty.
’Vexatious proceedings’ are defined in Section 102Q as include proceedings in a court or tribunal that are an abuse of process; that are instituted or conducted to harass or annoy, cause detriment, or for another wrongful purpose; or are instituted or pursued without reasonable ground. Section 102QB sets out the process for the making and types of vexatious proceedings orders. The court must be satisfied as to the threshold issue that a party has frequently instituted or conducted vexatious proceedings or has acted in concert with another person who has done so. It is not necessary for the multiple proceedings to be in the same court or tribunal, and as such the provision serves as an important discouragement to forum shopping.
It should be noted that there is a distinction between harmful proceedings orders and the court’s existing vexatious proceedings orders powers. This distinction was noted in the explanatory memorandum to the Family Law Amendment Bill: 321. Harmful proceedings orders powers are different from the court’s current vexatious proceedings orders powers ( section 102QB ). Harmful proceedings orders require the court to consider the impact that the repetitive and litigious nature of the applicant’s filings would have on the respondent, whereas vexatious proceedings orders powers focus on the applicant’s intent to institute or conduct proceedings in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose (see section 102Q). Harmful proceedings orders powers are not intended to limit the court’s other powers, including those in relation to vexatious proceedings or summary dismissal under section 102QAB.
Section 102QAB(4)-(7) FLA empowers the court, on its own initiative or on application by a party, to dismiss all or part of proceedings at any stage if satisfied they are frivolous, vexatious or an abuse of process; and to make such costs orders it considers just. A similar provision is contained in Section 242 in Part 12 of the Family Court Act 1997 (WA). However, it is limited to proceedings the court is satisfied are frivolous or vexatious. Furthermore, section 102QAB(5) FLA provides that proceedings or part of proceedings are not to be considered frivolous, vexatious or an abuse of process just because a related application is made and later withdrawn.
The legislative definition of vexatious proceedings reflects the understanding expressed in the 2010 joint report of the Australian Law Reform and New South Wales Law Reform Commissions, Family Violence – A National Legal Response. While the report specifically deals with vexatious litigation in the context of state and territory protection order proceedings, it recognises the difficulties that vexatious litigation may present in domestic and family violence related proceedings generally. In particular, concerns arise where perpetrators of violence may use the legal system to further harass, control or abuse the victim. Elsewhere in this bench book, this behaviour is referred to as systems abuse. While any single application may not in itself be considered vexatious, it may be difficult for a court to identify the application as part of a pattern of litigious behaviour that is vexatious without also understanding the history of domestic and family violence perpetrated by the party making the application. Further underlining the difficulty associated with identifying vexatious litigation where there is a history of violence, a victim of long-term violence may, with reasonable grounds, make multiple and frequent applications, for example to enforce parenting orders that have been repeatedly breached by the perpetrator. Where a party is also self-represented, a court may need to consider the party’s lack of knowledge and experience of legal concepts and processes as a legitimate contributing factor to their frequent engagement with the legal system.
The Family Law Amendment Act 2023 (Cth) repealed the previous subsections 45A (Summary Decrees) and 102QA, and inserted a new overarching Part XI, Division 1A ‘overarching purpose of the family law practice and procedure.’ Part XIB of the Family Law Act 1975 (Cth) (FLA) (there is currently no equivalent in Western Australia) deals specifically with decrees and orders relating to unmeritorious, harmful, and vexatious proceedings. For the purposes of Part XIB, a ‘harmful proceedings order’ made under section 102QAC, prohibits a party from instituting proceedings without first obtaining leave of the court, if the court is satisfied that there are reasonable grounds that the other party ‘would’ suffer harm (section 102QAC(1)). The court also may have regard to the cumulative effect, or any potential cumulative effect, of any harm (section 102QAC(3)). A person who is subject to a harmful proceedings order needs to satisfy the court that their application has reasonable prospects of success and is not vexatious, frivolous, or an abuse of process (section 102QAG)(having weighed it against the potential harm the application may have on the other party), before it can be filed and served.
Note also that the Family Law Amendment Act 2023 (Cth) introduced Division 1A, in Part XI, which highlights the overarching purpose of the family law practice and procedure provisions.
The overarching purpse of the family law practice and procedure ( Section 95 ) provisions is to facilitate the just resolution of disputes:
1.
in a way that ensures the safety of families and children
2.
in relation to proceedings under the Family Law Act in which the best interests of a child are the paramount consideration – in a way that promotes the best interests of the child
3.
according to law, and
4.
as quickly, inexpensively and efficiently as possible
5.
This is accompanied by a statutory duty on parties and their legal representatives to conduct proceedings in a way that is consistent with the overarching purpose ( section 96 ). Cost orders can be made against parties and legal representatives who are found to have breached the duty.
’Vexatious proceedings’ are defined in Section 102Q as include proceedings in a court or tribunal that are an abuse of process; that are instituted or conducted to harass or annoy, cause detriment, or for another wrongful purpose; or are instituted or pursued without reasonable ground. Section 102QB sets out the process for the making and types of vexatious proceedings orders. The court must be satisfied as to the threshold issue that a party has frequently instituted or conducted vexatious proceedings or has acted in concert with another person who has done so. It is not necessary for the multiple proceedings to be in the same court or tribunal, and as such the provision serves as an important discouragement to forum shopping.
It should be noted that there is a distinction between harmful proceedings orders and the court’s existing vexatious proceedings orders powers. This distinction was noted in the explanatory memorandum to the Family Law Amendment Bill: 321. Harmful proceedings orders powers are different from the court’s current vexatious proceedings orders powers ( section 102QB ). Harmful proceedings orders require the court to consider the impact that the repetitive and litigious nature of the applicant’s filings would have on the respondent, whereas vexatious proceedings orders powers focus on the applicant’s intent to institute or conduct proceedings in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose (see section 102Q). Harmful proceedings orders powers are not intended to limit the court’s other powers, including those in relation to vexatious proceedings or summary dismissal under section 102QAB.
Section 102QAB(4)-(7) FLA empowers the court, on its own initiative or on application by a party, to dismiss all or part of proceedings at any stage if satisfied they are frivolous, vexatious or an abuse of process; and to make such costs orders it considers just. A similar provision is contained in Section 242 in Part 12 of the Family Court Act 1997 (WA). However, it is limited to proceedings the court is satisfied are frivolous or vexatious. Furthermore, section 102QAB(5) FLA provides that proceedings or part of proceedings are not to be considered frivolous, vexatious or an abuse of process just because a related application is made and later withdrawn.
The legislative definition of vexatious proceedings reflects the understanding expressed in the 2010 joint report of the Australian Law Reform and New South Wales Law Reform Commissions, Family Violence – A National Legal Response. While the report specifically deals with vexatious litigation in the context of state and territory protection order proceedings, it recognises the difficulties that vexatious litigation may present in domestic and family violence related proceedings generally. In particular, concerns arise where perpetrators of violence may use the legal system to further harass, control or abuse the victim. Elsewhere in this bench book, this behaviour is referred to as systems abuse. While any single application may not in itself be considered vexatious, it may be difficult for a court to identify the application as part of a pattern of litigious behaviour that is vexatious without also understanding the history of domestic and family violence perpetrated by the party making the application. Further underlining the difficulty associated with identifying vexatious litigation where there is a history of violence, a victim of long-term violence may, with reasonable grounds, make multiple and frequent applications, for example to enforce parenting orders that have been repeatedly breached by the perpetrator. Where a party is also self-represented, a court may need to consider the party’s lack of knowledge and experience of legal concepts and processes as a legitimate contributing factor to their frequent engagement with the legal system.