A case heard by appeal judges of the Family Court in Brisbane recently raised the topic of vexatious proceedings orders. The matter of Graft & McCormick [court pseudonyms] involved a mother who had made so many applications and appeals that a judge had eventually issued a vexatious proceedings order, forbidding her from starting legal action in future.
In the long-running matter, two children had been ordered by the court to spend time with their mother on weekends and in school holidays, however this order had been made conditional on the mother first completing a parenting course. Inexplicably, rather than simply attend the course and resume visitation with her kids, the mother “steadfastly maintained the position that she will not complete a parenting course”. It has therefore been many years now since the kids spent time with their mum, last seeing her when they were aged 8 and 9 (they’re now 13 and 14 years old).
In that intervening time, the mother filed numerous applications and appeals, but these have largely attempted to revisit the issues already determined by the judge at the original trial. A judge eventually made a vexatious proceedings order against her and the present matter was the mother’s appeal from the vexatious proceedings order.
What are vexatious proceedings orders?
Vexatious proceedings orders can be made in any Australian court, with the aim of preventing parties from repeatedly starting up legal action without having a sufficient basis.
In family law, 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.
Note that it’s not just the bringing of proceedings itself that can be considered vexatious, but also a party’s conduct during proceedings that are afoot, where that conduct is held to be motivated to harass, annoy, cause delay or detriment or achieve some other wrongful purpose.
The family 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.
But what about people’s right to access justice?
As the judge in a case we mentioned a few years ago said:
“The purpose of [a vexatious] 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.”
However while the public needs to be protected from vexatious litigation, this must also be balanced against people’s fundamental right to accessing justice. Therefore, courts have very wide discretion and the remedy of a vexatious proceedings order is actually considered extreme, because it will bear on all of that person’s future proceedings, vexatious or not.
Deliberately vexatious or just misguided?
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 that they’re right. In considering this question, the courts have pointed out that “the implication of this consideration is that what might be objectively vexatious could also be subjectively righteous”. Highlighting this grey area, a court noted a “decision may have been vexatious. Equally, it may have been pragmatic and appropriate”.
Similarly, litigants have been noted to have a vehement and passionate belief in their own case. 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!
Family violence and vexatious litigants
When the courts identify family violence as being a factor, they often recognise that a litigant is being vexatious as a means to continue to abuse their victim through the court process. An abuser may enjoy compelling their ex to continue to engage with them through court, and they may hope to drain their ex’s finances.
To help address this issue, reforms were instituted in 2017 by the 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, trivial complaints in court from one parent regarding what children ate or what they wore while with the other parent can now be considered vexatious.
Why was this vexatious order appeal dismissed?
In the Graft & McCormick case, the mother was unable to identify any appealable error. It seems that rather than describe any error, the mother made broad claims of criminality by judges, justices and the family courts generally, claiming they accepted perjury in her case. She claimed the courts had aided and abetted criminal offences and she asked for compensation in the amount of $30 million from the courts and $3 million from the father.
Her submissions amounted to a general criticism of the legal system and the judiciary, amid allegations of corruption and illegality. She also accused the father of being a threatening drug addict who was prone to “sexual misconduct”. Yet she didn’t offer up any specific evidence to support her claims. In all her various court proceedings, her claims have been “repeatedly rejected by judges”.
Because of the lack of merit, her appeal was dismissed, and the vexatious order stands.
You can read the case here.
Do you need any help with a family law matter such as divorce or resolving parenting matters? 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.
