What is a harmful proceedings order?

By Caitlin Elliott– Special Counsel

The concept of “harmful proceedings orders” was introduced to the Family Law Act 1975 (Cth) and Federal Circuit and Family Court Act 2021 (Cth) on 6 May 2024. The legislation empowers the Federal Circuit and Family Court of Australia to make an order prohibiting a person from instituting proceedings against another person in certain circumstances.

Since then, several judgments considering the new sections have been handed down by the Federal Circuit and Family Court of Australia.

When will the Court make a harmful proceedings order?

Section 102QAC(1) of the Family Law Act 1975 (Cth) (FLA) allows the Court to make a harmful proceedings order prohibiting a person from instituting proceedings under the FLA against another person without the Court’s permission (102QAG FLA) if there are reasonable grounds to believe that:

1. The other person would suffer harm if the first person instituted further proceedings against them; or
   
   
2. In the case of child-related proceedings (that is, Part VII FLA) — the child who is the subject of the proceedings would suffer harm if the first person instituted further proceedings against the other person.

“Harm” may include, but is not limited to, psychological harm or oppression, major mental distress, a detrimental effect on the other person’s capacity to care for a child, or financial harm: s102QAC(2) FLA.

Where a harmful proceedings order is sought, the Court is required to consider the impact of potential further proceedings on the respondent, and on any child the subject of those proceedings.  That is different from the traditional concept of vexatious proceedings orders, where the focus is on the actions and motivation of the litigant who commences the further proceedings: Babic and Taccini [2024] FCWA 203).

Section 102QAC(3) FLA provides that, in determining whether to make a harmful proceedings order the Court may have regard to:

1. The history of the proceedings under the FLA between the first person and the other person;
   
   
2. Whether the first person has frequently instituted or conducted proceedings against the other person in any Australian court/tribunal (including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of the legislation creating harmful proceedings orders); and
   
   
3. The cumulative effect, or any potential cumulative effect, of any harm resulting from the proceedings referred to in paragraphs (a) and (b) above.
   

The court may make a harmful proceedings order on its own initiative, or on application by a party to the proceedings. A harmful proceedings order is a final order. The court must not make a harmful proceedings order in relation to a person without hearing the person, or giving the person an opportunity to be heard.

What is the consequence of a harmful proceedings order being made?

Section 102QAD(1) FLA provides that if a person is subject to a harmful proceedings order:

1. They must not institute proceedings in the court without the leave of the court under section 102QAG; and
   
   
2. Another person must not, acting in concert with the person, institute proceedings in the court without the leave of the court under section 102QAG.
   

Section 102QAD FLA provides that if proceedings are instituted in contravention of s102QAD(1) FLA, the proceedings are stayed.

When can someone proceed with an application when a harmful proceedings order has been made?

A person who is subject to a harmful proceedings (the Applicant) may apply to Court for leave to institute proceedings (s102QAE FLA). The Applicant must file an application with a supporting affidavit that:

1. Lists all the occasions on which the Applicant has applied for leave; and
   
   
2. Discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the Applicant.
   

Section 102QAG FLA provides that the Court may make an order granting the application for leave only if it is satisfied that the proceedings are not frivolous, vexatious or an abuse of process, and have reasonable prospects of success. An order under section 102QAG FLA may be made subject to the conditions the Court considers appropriate.

The Applicant must only serve a copy of the application and affidavit on a person if an order is made under section 102QAG FLA.

Section 102QAF FLA provides that the Court may make an order dismissing the application if the affidavit is non-compliant. The Court must make an order dismissing the application if the proceedings are vexatious proceedings (s 102QAG FLA).

Recent cases regarding harmful proceedings orders

Lamport & Garside [2024] FedCFamC2F 1007and Garside [2024] FedCFamC1A 250

In Lamport & Garsidethe mother applied for a harmful proceedings order to restrain the father from continuing his application for parenting orders.

The father’s application was dismissed and a harmful proceedings order was made by Judge Brown in circumstances where:

1. The father had been physically separated from the children (aged 4 and 8) since 2020 because he was in prison and would be imprisoned until 2029. He had been convicted of a serious crime of violence against the eldest child. The mother and the eldest child had both been diagnosed with post-traumatic stress disorder.
   
   
2. The mother and the children had been the subject of a number of intervention orders protecting them from the father.
   
   
3. The mother and the eldest child would suffer severe psychological distress if the father’s application proceeded. The mother’s evidence included evidence from her treating psychologist that the proceedings had already caused her emotional anguish and would continue to do so if they proceed further.
   
   
4. In the circumstances the father had no realistic or reasonable prospects of advancing his case in respect of the two children.
   

The case also clarified that the Court can make a harmful proceedings order whether or not proceedings have previously been determined by the Court. In Lamport & Garside, there had been no previous court proceedings. But, if there have been previous proceedings between the parties, the Court can analyse the earlier proceedings when deciding whether further proceedings would be harmful to a party or a child.

The father sought leave to appeal Judge Brown’s decision out of time. Justice Austin heard the appeal (in Garside) and dismissed it on the basis that the appeal was without reasonable ground and therefore vexatious per s102QAF and 102QAG FLA.

Babic and Taccini [2024] FCWA 203

The husband sought a harmful proceedings order against the wife. The wife had issued proceedings after final parenting orders were made that the father have sole parental responsibility for the parties’ children, the children live with the father and spend supervised time with the mother.

Judge O’Brien stated that proof that the husband or children would suffer harm if further proceedings were instituted was not required. Instead, what is required is to establish reasonable grounds to believe that they would suffer harm.

Judge O’Brien addressed the relevant matters set out in s 102QAC(3) FLA, including that:

1.  There had been a long history of proceedings between the parties. Proceedings were first instituted by the husband in 2017 and related proceedings continued until 2023. Judge O’Brien stated “the wife’s conduct has led to the outcomes of contravention proceedings…enforcement proceedings in the financial case, substantial costs orders, and further proceedings required to enforce those costs orders. It may fairly be anticipated that any further litigation driven by the wife would be conducted in a similar vein….There is no identifiable prospect of the wife accepting determinations of the Court with which she does not agree, nor is there any identifiable prospect of her conducting any further proceedings in a manner different from what has gone before”.
   
   
2. There was no doubt the children had already suffered psychological harm and major mental distress as a result of the proceedings previously before the Court, and there were reasonable grounds to believe that both children would suffer harm in the form of psychological harm or oppression, and major mental distress, if the wife instituted further proceedings against the husband.
   

In all the circumstances, Judge O’Brien made a harmful proceedings order. The wife’s application to reopen the final parenting orders was dismissed.

If you would like advice about harmful proceedings orders or any other family law issues, please contact us on (03) 8672 5222 to arrange an appointment with one of our experienced lawyers.