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Family law legal and precedent issues

Vexatious proceedings orders in the family court: application dismissed

By October 18, 2018October 28th, 2021No Comments

A recent judgment in the Family Court in Newcastle raised the issue of vexatious proceedings orders. These are orders which can be made in the Australian courts, including the family courts, which aim to prevent parties repeatedly initiating legal action lacking sufficient grounds, often in order to harass or subdue the other party.

In family law, section 102Q(1) of the Family Law Act defines “vexatious proceedings” to include proceedings that are an abuse of the process of a court, or without reasonable ground, or those instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose. Further, it is not just the bringing of proceedings itself that can be considered vexatious, but also the party’s conduct during proceedings, where that conduct is held to be motivated to harass, annoy, cause delay or detriment or achieve some other wrongful purpose.

Under section 102QB(2) the courts can make vexatious proceedings orders including staying or dismissing proceedings instituted by the party, making costs orders, making orders prohibiting the party from instituting future proceedings, or requiring them to seek the permission of the court to institute proceedings. A court can make vexatious proceedings orders independently or by application of a party.

In the case of Matthews & Norris (No.3) [2018], the father sought an order prohibiting the mother from instituting further proceedings under the Family Law Act. The basis was that the mother had frequently instituted proceedings in Australian courts, having brought 15 applications against the father in respect of property and parenting, despite parenting matters having already been determined on a final basis. She failed to prosecute some of the applications, failed to appear in court on several occasions, and often made applications with little prospect of success.

The court was ultimately satisfied the mother had filed numerous vexatious applications. But the parties’ applications for adjustment of interest in property were still on foot and the court found that making vexatious proceedings orders against the self-represented mother could therefore seriously disadvantage her and could also delay the final hearing, to both parties’ detriment. As such, that aspect of the application was dismissed.

In vexatious proceedings orders cases, the courts are required to establish whether the proceedings have been instituted in a vexatious manner rather than simply because a litigant “is genuinely but misguidedly persuaded as to the correctness of his or her own conduct”. In considering this question, the judge pointed out that “the implication of this consideration is that what might be objectively vexatious could also be subjectively righteous”.  In relation to one application made by a wife, the judge highlighted this grey area, noting “that decision may have been vexatious. Equally, it may have been pragmatic and appropriate”.

The wife’s submissions were said to “suggest a vehement and passionate belief in the righteousness of the wife’s cause”. However, merely feeling passionate about one’s case is not enough to excuse vexatious behaviour in the courts. After all, it’s hard to find a litigant who is not convinced of the righteousness of their own case…

The courts also “must ask, ‘is there a failure, often a refusal, to understand the principles of finality of litigation?’” In that case, the judge did feel there was some indication of this, given the wife’s attempts to bring fresh parenting proceedings once final orders had been made, which the judge described as “a dogged refusal to accept that the application would not succeed”.

These considerations would seem to be more relevant in cases such as the present one, where the “vexatious” party did not have legal representation. It’s expected that parties with legal representation would be given proper legal advice regarding engaging in this kind of conduct. But even parties with legal representation have been found to be vexatious.

For instance, in situations involving family violence, perpetrators may try to use the court process to continue abusive behaviour, forcing the other party to continue to engage with them and often draining their financial resources.  To help address this issue, reforms were instituted last year by then-attorney general George Brandis in the Family Law Amendment (Family Violence and Other Measures) Bill 2017. According to the bill’s explanatory notes, it strengthened and codified the power of the family law courts “to dismiss unmeritorious cases and proceedings that are frivolous, vexatious or an abuse of process [enabling] courts exercising family law jurisdiction to better protect victims of family violence from perpetrators who attempt to use the family law system as a tool of continued victimisation.”  For example, complaints in court from one parent regarding children’s meals or attire while with the other parent could be considered vexatious.

However, this is an area where the courts have very wide discretion, and the remedy of a vexatious proceedings order is considered extreme, because it will bear on all future proceedings, vexatious or not.

As the judge in this case said, “The purpose of the order is to shield the public, including individuals and the court, whose limited resources and needs must be managed and protected from baseless, repetitious suits.” But while the public needs to be protected from vexatious litigation, this must also be balanced against people’s fundamental right to accessing justice.

Despite declining to make a vexatious proceedings order, the judge noted that the wife had engaged in a “tenacious pursuit of her preferred parenting outcome despite the final parenting orders having been made” and that this suggested that she may continue to attempt to make parenting applications in the future. Therefore, once the property proceedings had been resolved, if the wife continued to pursue proceedings with a vexatious flavour, there would still be the potential for the husband to make a fresh application for a vexatious proceedings order—and conceivably obtain a different outcome.

You can read the case here.

Would you like to discuss the possibility of making an application to have proceedings dismissed under section 102Q provisions, or do you need assistance with another family law matter? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.


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