Vexatious proceedings

The Family Law Amendment Bill 2023 (Cth) is currently before Parliament. The Bill amends Family Law Act 1975 to introduce ‘harmful proceedings orders’ and extend the ‘overarching purpose of family law practice and procedure’ and the accompanying duty to all proceedings instituted under the Family Law Act 1975.

More information can be found here:

Section 45A(4)-(8) of the Family Law Act 1975 (Cth) (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 order 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. While Part XIB of the FLA (no equivalent in WA) deals specifically with vexatious proceedings, Section 102QA preserves the court’s broader powers to deal with frivolous or vexatious proceedings, for example under Section 45A FLA. For the purposes of Part XIB, Section 102Q defines ‘vexatious proceedings’ to 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.

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.

Subsection 45A(5) FLA provides that proceedings or a 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.

It is intended that with the FCFCA Rules, the Central Practice Direction and the introduction of the FCFCA that there be greater focus on accountability for vexatious litigants (and/or their legal representatives personally) earlier on in proceedings.