Harmful Proceedings Orders

The Family Law Amendment Act 2023 introduced significant changes to family law in Australia. Amongst other significant changes, the Federal Circuit and Family Court of Australia and the Family Court of Western Australia now have the authority under section 102QAC of the Act to issue Harmful Proceedings Orders (HPOs). HPOs restrict vexatious litigants from filing or serving new applications without leave from the courts. The courts can issue an HPO either upon request from one of the parties in an ongoing proceeding, or upon its own initiative. This article looks at the nature of HPOs and the potential implications for parties in family law proceedings in Australia.

Use of HPOs

A HPO is distinct from a traditional vexatious litigant order that focuses on the motivations and actions of the litigant who commences the proceedings. With an HPO, the court must consider the impact of further proceedings on the respondent and any child that is a subject of the proceedings.

The new provisions in the Family Law Act enable the court to make an HPO if:

• there are reasonable grounds to believe that the respondent is at risk of harm from further proceedings; or
• in a child-related proceeding, the child who would suffer harm if the first party instigated further proceedings against the other part.

The term “harm” here refers to oppression, major mental distress, impairment of parenting ability and financial and psychological injury.

An HPO does not entirely prevent a party from commencing further proceedings. Rather, if an HPO has been ordered the applicant must first satisfy the court that the proposed action is not vexatious, frivolous or an abuse of process.

Parenting proceedings

Parenting proceedings can be drawn out, costly and emotionally draining. Most parenting matters before the court will involve numerous steps, and those cases that proceed to final parenting orders can take several years. Even after the courts make final orders, a party who is dissatisfied with the outcome may attempt to change the result by filing a new application. When this happens, an HPO can be the appropriate mechanism to prevent abuse of process.

In such cases, the court must first consider whether there are any new circumstances that would constitute grounds to revisit the matter. The courts has previously only been willing to consider varying a final parenting order when the matter satisfies the rule in Rice v Asplund. This case established that unquestioningly allowing applications to change final parenting orders invites endless litigation. Therefore, to prevent this happening, the courts will usually not allow an application to change final orders unless the circumstances have changed sufficiently to justify a reassessment. One of the changes under the Family Law Amendment Act is the codification of this rule in Rice and Asplund. If the courts determine that there are no grounds for reassessing the final parenting orders, it is more likely that the court will make an HPO.

Before making an HPO, the court will consider:

• the history of legal proceedings between the first and second party
•  whether one party has disproportionately instituted proceedings against the other party in any Australian court or tribunal
• and the actual or potential cumulative effect of any harm caused by the proceedings.

Notably, it is not necessary to prove that the respondent or children would suffer harm if further proceedings were instituted. It is only required to establish, through sufficient facts, reasonable grounds to believe that they could suffer harm. However, the Court will not make a unilateral HPO against a person without giving them an opportunity to be heard on the matter.

Case study

In the case of Babic and Taccini [2024], the Family Court of Western Australia heard an application from a father for a HPO against the mother. After a long history of contested proceedings between the parties, the father was finally given sole parental responsibility for the couple’s children, with the mother to have only limited supervised time. After the final orders were made, the mother filed another application with the court. There had been no relevant changes since the court issued the final orders to justify commencing fresh proceedings. The mother sought changes to the parental responsibility orders and numerous ancillary orders relating to child support, the children’s education and their surname. In response, the father sought dismissal of this application, and requested a HPO to prevent the wife from harassing him with further litigation.

At the hearing for the matter the husband filed affidavit material from himself, his new wife, the children’s therapist and one of the children’s teachers. In contrast, the mother did not attend, did not provide any evidence, and did not respond to the court’s efforts to reach her by telephone. In its judgment, the court acknowledged that protracted or continual litigation of parenting arrangements is harmful to the children involved, as well as being contrary to public policy. Justice O’Brien found that there were clearly reasonable grounds to find that the children in this case would suffer harm if the mother continued to bring unwarranted family law proceedings against the father. Justice O’Brien found there was no need to assess the potential harm of further proceedings to the father, given the court’s conclusion about potential harm to the children. Therefore, the judge issued a HPO against the wife to prevent further proceedings.

As the significant changes in the amendment come into force, it is essential that anyone involved in a family law proceeding stay informed and prepared. Our family law specialists can help you understand these changes and advocate for your best interests and the best interests of your family. Please call Go To Court Lawyers on 1300 636 846 for assistance with parenting arrangements, property settlements or any other legal matter.