Disclaimer: The views expressed by the authors are their personal views expressed in the context of professional education only. In particular, the views expressed by Altobelli J are not expressed in a Judicial capacity.
Introduction
The recent amendments to the Family Law Act 1975 (Cth) (“the Act”) have created a robust framework designed to curtail proceedings that are not only unmeritorious and/or vexatious but are harmful. The provisions found in Part XIB of the Act reflect a legislative shift towards providing safeguards to litigants and children from being subjected to the collateral damage that arises due to litigation. This article briefly contrasts the legislative frameworks in relation to vexatious proceedings, summary dismissal and harmful proceedings, before diving further into the latter. To achieve this, we examine what constitutes harm under s 102QAB of the Act, how the harmful proceedings provisions have been applied since their introduction and speculate about future directions in this space.
Overview of Part XIB
Part XIB of the Act outlines the Court’s powers in dealing with proceedings that are “unmeritorious, harmful, or vexatious” (s 102QAA). In the Explanatory Memorandum to the Family Law Amendment Bill 2023 (Cth) at paragraph 309 (“the Explanatory Memorandum”), the rationale behind Division 1A & 1B of the Act was to “collocate all the Court’s powers for dealing with application or proceedings… to improve usability”.
Unmeritorious proceedings are those without reasonable prospect of success, frivolous, vexatious or otherwise constitute an abuse of process. These may be dealt with by summary decree (s 102QAB). There is no separate order, however, called an unmeritorious proceedings order. A summary decree can be made in the following circumstances: there is no reasonable prospect of successfully defending, or prosecuting, proceedings; there is no reasonable prospect of success; the proceedings are frivolous, vexatious, or an abuse of process. A summary decree could be sought in respect of part only of a proceeding.
Harmful proceedings orders are a new and relatively distinct form of order that prohibits the institution of proceedings that may result in harm to another party and/or a subject child (if applicable). Harmful proceedings orders will be discussed in more detail below.
Both summary decrees and harmful proceedings orders may be made on application by a party, or on the Court’s own initiative, and costs may flow from both forms of order.
Vexatious proceedings orders already exist so will not be the focus of this article. Practitioners should familiarise themselves with the following material:
See particularly Perram J in Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398, Fitch, E., & Easteal, P. (2017). Vexatious litigation in family law and coercive control: Ways to improve legal remedies and better protect the victims. Family Law Review, 7(2), 103-115 and Benjamin, R (2014). A national approach to manage vexatious litigation: New powers under the Family Law Act. Family Law Review, 4(3), 170-182.
Harmful proceedings orders
Harmful proceedings orders uniquely require the Court to determine whether there are reasonable grounds to believe that a party, or a subject child, would suffer harm if the proposed proceedings were to begin. It is limited, however, to proceedings under the Act, but ‘proceedings’ is given an extended definition to include a proceeding, whether between the parties or not, including cross-proceedings or an incidental proceeding in the course of or in connection with a proceeding. This extended definition thus potentially includes applications by third parties which are incidental to the proceedings between, for example, the parents.
Judicial officers are permitted to take account of direct medical evidence, and/or the history of proceedings in this and other Australian Courts as evidence of such ‘harm’. Before making a harmful proceedings or vexatious order the Court is required to hear the respondent. This is not a requirement for the other summary decrees though best practice arguably requires this.
The concept of ‘harm’ is central to a harmful proceedings order. Harm is defined in non-exclusive terms under s 102QAC(2) of the Act as including psychological harm or oppression, major mental distress, detriment to parenting capacity and financial harm. There is nothing in the wording of the section to prevent only one element of harm being a sufficient foundation for an order.
Parliament’s intention behind the harmful proceedings powers is found in the Explanatory Memorandum at [322]:
“to allow the courts to proactively intervene, or intervene upon application by a party to the proceedings, before further applications are served on the other party, and therefore limit the detrimental effect, major mental distress or psychological harm that may result from further applications”.
This endows s 102QAC(2) of the Act with a uniquely anticipatory capacity. But does it limit the application to merely prospective proceedings, or does it extend to existing proceedings as well? Judge Brown in Lamport & Garside [2024] FedCFamC2F 1007 (“Lamport & Garside”) said:
“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”
Whilst we agree with the sentiment of his Honour’s comments, both the section, and the Explanatory Memorandum are clear: it only applies to prospective proceedings.
A proper understanding of harm in the context of s 102QAC(2) of the Act is found in the non-exclusive, statutory components of harm.
“The power is anticipatory — designed to stop harm before it happens. The Court can act before further proceedings even begin.”
Section 102QAC(2)(a) psychological harm or oppression. These factors are expressed in the alternate; one or the other may suffice. According to the Macquarie Dictionary definition 1 ‘harm’ means to “damage or hurt” whilst ‘oppression’ means “the exercise of authority of power in a burdensome, cruel, or unjust manner”. In conjunction, the form of ‘harm’ intended to be addressed by both alternate propositions is limited to purely mental or emotional detriment induced by the imposition, or continuation of, purportedly harmful proceedings oppression. As the definition is inclusive, however, this might mean, for example, that physical and financial oppression is caught by this section.
Section 102QAC(2)(b) major mental distress. According to the Macquarie Dictionary definition 1, ‘distress’ means “great pain, anxiety, or sorrow; acute suffering; affliction; trouble”. Mental distress, as a form of harm, is likely to arise from most proceedings under the Act. Justice Behrens noted in Chen & Parisio [2025] FedCFamC1F 27 (“Chen & Pariso”) that “much litigation will cause mental distress” and that “something more is required”. This may be surmised by reference to the statutory inclusion of the presupposition major mental distress in the Act. The form of harm sought to be addressed by this factor is extraordinary distress beyond the norm for the proceeding contemplated. Arguably the harm may be inferred.
Section 102QAC(2)(c) a detrimental effect on the other party’s capacity to care for a child. Parental capacity is a well-accepted consideration in the determination of parenting orders that does not require explanation here. The inclusion of this factor demonstrates that harm may be indirect in the sense that the proceeding induces a net negative effect on a family unit via the degradation of core competencies of one or more parties. Further, it is important to note that this factor is not limited to adjudication of putative or current parenting proceedings. It may be such that auxiliary, contingent or bifurcated financial proceedings may have a harmful effect on a person’s parental capacity and thus enliven this sub-provision.
Section 102QAC(2)(d) financial harm. According to the Macquarie Dictionary definition 1 ‘financial’ relates “to monetary receipts and expenditures”. Financial harm must therefore describe the detriment a person suffers through excess or unnecessary pecuniary loss as a result of pending or current proceedings that is beyond the norm similar claims under the Act.
How have the harmful proceedings division been applied?
In search of possible trends, we briefly survey a selection of recent harmful proceedings decisions.
Berman J in Purnell & Keene [2024] FedCFamC1F 571 handed down on 29 August 2024 (“Purnell & Keene”) declined to make a harmful proceedings order. In this matter, final orders were made for the children to live with the mother, spend no time with the father who was subjected to various restraints. Despite a previous ADVO and the evidence supporting that the father had previous harassed and intimidated the mother, the evidence submitted did not establish that “further proceedings would result in inevitable harm or aggression.” (Purnell & Kenne at [115]).
On 20 September 2024, judgment was handed down in by Harper J in Morse & Duarte (No 8) [2024] FedCFamC1F 639 (“Morse & Duarte (No 8)”). His Honour made a harmful proceedings order after having found that a wife had unsuccessfully prosecuted nine applications before the Court. He referred to “such proceedings hav[ing] been frequently and habitually instituted by the wife” (Morse & Duarte (No 8) at [103]). The husband submitted that if the wife were to institute further proceedings “he would suffer financial harm and stress that impacts upon his quality of life” and further that any “financial harm the husband would suffer could not be properly addressed through a costs order given the wife’s persistent non-compliance…” (Morse & Duarte (No 8) at [104]). His Honour “had regard to the cumulative effect, or potential cumulative effect, of any harm to the husband resulting from further proceedings” and further commented that the effect was seemingly “significant” (Morse & Duarte (No 8) at [105]).
Judge Glass in Sastri & Kurta [2024] FedCFamC2F 1742 delivered on 4 December 2024, refused to make a harmful proceedings order where his Honour formed the view that the harm was mere speculation. Judge Glass noted the requirements of the rule of law and contended that “it is a serious matter to deprive a person of access to the courts” (Sastri & Kurta at [68]). Counsel asserted that “it is likely that the mental distress that it would cause to my client would trickle through to the child, and there would be an impact on her”, but his Honour concluded that “counsel’s anticipation of what is “likely” is not a matter to which [the Court] can afford any weight” (Sastri & Kurta at [75]) and in the absence of any evidentiary foundation, the application was rejected.
In an unpublished judgment handed down on 11 February 2025, Judge Mansfield made a harmful proceedings order after receiving evidence from the mother’s treating psychologist that the “mother has suffered psychological harm and major mental distress attributable to the father instituting these proceedings” (at [50]). The Court accepted this evidence in addition to evidence about financial harm and independent evidence about the detrimental effect that the proceedings had on the mother’s capacity to care for the child. Notably, whilst third party evidence may not be independent it may still assist the Court in exercising its discretion to make a harmful proceedings order. See Lamport & Garside for a further example of an order made to proactively prevent psychological harm.
Behren’s J made a harmful proceedings order in Chen & Parisio on 30 January 2025. Her Honour confirmed that the Court is “not required to be satisfied on the balance of probabilities that harm will occur if further proceedings are instituted, but rather to be satisfied that there are reasonable grounds to believe there will be such harm” (Chen & Parisio at [84]). This is a case where no medical evidence was presented but the history of proceedings was relevant (Chen & Parisio at [86]). This case shows that medical evidence can prove harm, and where not available, historical analysis may suffice.
Future directions
The harmful proceedings provisions were introduced “to limit systems abuse, which is a form of family violence that is prevalent in the family law system” (Explanatory Memorandum, paragraph 319). The future directions of the provisions should go towards this aim. As Division 1B of the Act matures, judicial officers may step away from the view that a harmful proceeding order is exceptional and requires definitive proof, towards a broader recognition of harm generated through repetitive filings as a distinct form of family violence, even where the only evidence of harm generated by this violence may be inferred. The deliberate inclusion of a non-exhaustive list of factors which may form reasonable grounds as a basis for a harmful proceedings order creates flexibility and allows remote or unforeseen changes to be considered where appropriate. This may extend; given the current epoch of technological advancement, to harm induced or exacerbated by technology including artificial intelligence.
Conclusion
Although none of our predictions may materialise, what is certain is that the harmful proceedings divisions under the Act provide a new and useful avenue for practitioners. This article outlines the additional principles, the dos and don’ts of an application pursuant to s 102QAC of the Act. Looking on the horizon, there is scope for an expanded recognition of varying natures of harm. The key take-away for practitioners is that harm is open ended but bound to a specific purpose. Some, but not all, principles are shared between different forms of summary decree. In order to satisfy the unique criteria for harmful proceedings order medical or fiscal evidence is an important first step.