On 6 May 2024, amendments to the Family Law Act came into effect. While much attention has been given to those amendments directly relevant to conducting parenting proceedings, a lesser publicised amendment was the insertion of Part XIB Division 2 – harmful proceedings orders.
“Harmful proceedings” are not the same as “vexatious proceedings”. This new category, unique to family law, was born out of a lacuna. That lacuna became evident in 2013 when the Full Court determined in Marsden & Winch (2013) 50 Fam LR 409 that the Court had no power to prohibit a litigant from instituting proceedings unless it could be demonstrated that the subjective intent of the litigant was to be vexatious. The Full Court concluded that it was irrelevant how vexed the other party felt, even though in the case of Marsden & Winch, the other party had developed post-traumatic stress disorder from the seven years of proceedings which impacted her ability to continue to care for the child.
The wheels of justice move slowly – but they do move – so the new harmful proceedings orders now deals with that lacuna.
Section 102QAC(1) provides the Court with power to prohibit a party from instituting proceedings under the Family Law Act without leave if the Court is satisfied there are reasonable grounds to believe the other party would suffer harm, or the subject child of the proceedings would suffer harm.
A non-exhaustive list of examples of “harm” is set out in s 102QAC(2) to include psychological harm or oppression, major mental distress, a detrimental effect on the other party’s capacity to care for a child or financial harm.
At least three harmful proceedings orders have already been made.
In Bruin & Bruin (No 4) [2024] FedCFamC2F 870, her Honour Judge Mansini noted at [17] that “there need not be a finding of actual harm suffered in order to make a harmful proceedings order. It being the protective intent that those who may suffer from harm upon the institution of future proceedings are not required to have first experienced harm in order for a harmful proceedings order to be made.”
In that case, after the conclusion of two sets of parenting proceedings, the children were ordered to live with the father and spend supervised time with the mother. The father had incurred $123,000 in legal costs and redrew on his mortgage to fund the earlier proceedings. Her Honour found that there were reasonable grounds the father would “incur cost and sustain financial harm” if required to engage in further proceedings and there would be a flow on adverse effect on the children for their financial needs; and there were reasonable grounds there would be psychological and emotional harm to the children.
In Lamport & Garside [2024] FedCFamC2F 1007, Judge Brown was asked to make a harmful proceedings order in circumstances where:
- the applicant father had pleaded guilty to a life-threatening assault on one of the parties’ children (then aged 4);
- the father will be incarcerated until at least 2029; and
- the mother and the child had both been diagnosed with post-traumatic stress disorder, and the mother’s clinical psychologist gave evidence that she would have “very significant concerns” for the mother’s mental health if the proceedings progressed.
Notwithstanding there had been no other proceedings instituted, Judge Brown concluded:
[132] In my view, it would make a nonsense of the provision, if the court, having formed a view that relevant proceedings are likely to cause harm to a party or child, could only intervene under the section, after the conclusion of such harmful proceedings, and only in respect of prospective proceedings.
…
[138] In general terms, it seems to me to be unarguable that to utilise ordinary parlance, given the highly unusual circumstances in which these proceedings arise, that Mr Garside’s application must be regarded as psychologically corrosive and so harmful to Ms Lamport and as a consequence of that it should be curtailed in the exercise of either of the court’s discretions arising under either section 102QAB or section 102QAC.
Finally, in Babic & Taccini [2024] FCWA 203, Justice O’Brien gave some guidance as to the standard necessary, saying at [52]:
… proof that the husband or children would suffer harm if further proceedings were instituted is not required. What is required is the establishment of reasonable grounds to believe that they would suffer harm – the distinction is important. There must be facts sufficient to induce that belief in the mind of a reasonable person. “The objective circumstances necessary to found reasonable grounds to believe must point sufficiently to the subject matter of that belief, [but] they need not be established on the balance of probabilities.” (footnotes omitted).
Like many of the new amendments, we await a decision from the appellate division of the FCFCOA to determine the metes and bounds of the new harmful proceedings orders.
