In 2024, the Family Law Act was amended to give the Court the power to make a “harmful proceedings order”. These orders are designed to prevent a party from repeatedly bringing applications before the Court without first obtaining permission to do so.
The purpose of the amendments was to prevent systems abuse by a party to a relationship and to ensure that party isn’t able to file repeated applications with the Court in an attempt to exert coercive control or cause “harm” to the other party or a child of the relationship. This may arise, for example, where one party has significantly greater financial resources than the other and repeatedly initiates court proceedings. The Court may make a harmful proceedings order on the application of the responding party or on its own initiative. However, the Court must first give the applicant an opportunity to be heard.
“Harm” is defined in section 102QAC and can include, but is not limited to:
- psychological harm or oppression;
- major mental distress;
- a detrimental effect on the other party’s capacity to care for the child; or
- financial harm.
The Court must assess and determine what constitutes harm based on the individual circumstances of each case, including any non-specified type of harm. As such, severe stress arising, for example, from repeated applications filed against a respondent may be sufficient, depending on the circumstances.
In determining whether to make a harmful proceedings order, the Court will consider the history of the proceedings, whether the applicant has frequently instituted proceedings against the other party, and the cumulative or potential cumulative effect of any harm on the parties and any child.
Examples
In the matter of Bruin and Bruin (No 4), the Court made a harmful proceedings order against the Mother at the Father’s request after she sought to reopen parenting proceedings concerning the parties two children, aged 13 and 11, only three weeks after final orders had been made. This was the Mother’s second attempt to reopen the proceedings.
When considering the application, the Court found that:
- There were reasonable grounds to believe both the Father and children would suffer financial and psychological harm if the mother were to initiate further proceedings given the history of the litigation and impacts of that litigation;
- The Father had incurred significant legal costs ($123,937.90) in the previous proceedings; and
- The children had experienced emotional trauma through repeated litigation, including intervention by child protective services who had removed the children from the Mother’s care.
Having made those findings, the Court ordered that the mother be prohibited from instituting further parenting proceedings without leave. However, the mother retained the right to bring future applications where the Court was satisfied that they had merit.
In the matter of Cheadle & Pointer, the Father sought a harmful proceedings order after the Mother applied to discharge final parenting orders in what constituted the fourth set of parenting proceedings between the two parties. The trial judges from the two previous hearings found that the Mother posed an unacceptable risk of emotional and psychological harm to the child of the relationship. Notwithstanding those findings, the Mother again sought to raise allegations of risk of harm to the child, most of which had previously been determined by a trial Judge.
The Court found that there were no significant changes in circumstances that would warrant the orders being reconsidered by the Court. The Court made the harmful proceedings order after being satisfied it would protect the Father and the child from harm.
When considering the application for a harmful proceedings order in this matter, the Court had regard to:
- The Mother’s denigration of the Father, who was the primary parent of the child (the Mother having supervised time only);
- the need to protect the child from the risk of emotional and psychological harm posed by the Mother;
The Court was also satisfied that there was a reasonable basis to believe that further litigation may expose the Father and the child to psychological, mental and financial harm.
Seeking leave to commence further proceedings
If a party seeks to commence further proceedings after a harmful proceedings order has been made, they must first file an application seeking leave to do so. This application must be accompanied by an affidavit which:
- lists all the occasions on which the applicant has applied for leave to file; and
- discloses all relevant facts about the application, whether supporting or adverse to it.
The Court may grant an application of leave to commence proceedings after a harmful proceedings order has been made, if the Court is satisfied that the application has merit. Unmeritorious proceedings are proceedings that are without reasonable prospect of success, an abuse of process, frivolous or vexatious.
Consequences of filing without leave
There are consequences for filing an Application with the Court once a harmful proceedings order has been made without first seeking leave to do so. If an application is filed, the proceedings will be put on hold (stayed). An order for costs may also be made against the applicant.
If you require advice in relation to a harmful proceedings order, including defending repeated applications or seeking leave to commence further proceedings, please contact a member of Coleman Greig’s Family Law Team.
If you are in immediate fear for your safety of the safety of a loved one, please contact the Police on 000.
