Harmful proceedings orders seek to protect parents and their children from unnecessary litigation

May 2024 saw significant amendments introduced to the parenting framework in Australia, including the concept of "harmful proceedings orders". A harmful proceedings order restrains a party from being able to bring further applications without first obtaining leave of the court. This article will consider the nature of a harmful proceedings order, as well as the circumstances in which the court may grant such an order.

Background

Section 102QAC of the Family Law Act 1975 (Cth) (the Act) enables the court to make a harmful proceedings order, prohibiting a party from instituting proceedings without leave of the court if:

• the court is satisfied that there are reasonable grounds to believe that the other party would suffer harm, or
• the proceedings relate to a child, that the child would suffer harm.

"Harm" 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.

In determining whether or not to make a harmful proceedings order, the court will consider the history of the proceedings, whether one party has frequently instituted proceedings against the other, and the cumulative or potential cumulative effect of any harm.

Case study

The new harmful proceedings provisions have recently been considered in the case of Bruin & Bruin ( No 4).¹ In this case, the mother sought to file a new application to reopen parenting proceedings three weeks after final parenting orders were made. The father sought an order pursuant to s102QAC and alleged that he and the children would suffer harm if the mother was able to pursue her application. It is not surprising that the application was made by the father, given the incredibly short period of time within which the mother sought to reagitate parenting proceedings.

In considering the father's application, Judge Mansini had regard to the Explanatory Memorandum to the Family Law Amendment Bill 2023 (Cth) which introduced harmful proceedings orders. It was noted that it was not necessary to show that actual harm had already occurred, as the purpose of the amendments is to protect and guard against the potential for future harm. The court is required to assess and determine what constitutes harm depending on the specific circumstances of each case.

Judge Mansini considered the history of the proceedings between the parties, and then considered the harm alleged by the father, including the financial harm to him in responding to further proceedings, the emotional and psychological harm to the children in being subjected to ongoing litigation or therapy, and the detrimental impact on the father's capacity to care for the children whilst participating in further litigation so soon after the original proceedings had finalised.

Judge Mansini was satisfied that there were reasonable grounds to find that the father would be subject to harm if the mother was able to pursue her application. Although this was a predictive assessment, given the history of the litigation and the financial, emotional and mental impact on the father, Her Honour determined the orders sought by the father were reasonable and proportionate. The harmful proceedings order was therefore made, precluding the mother from bringing new proceedings in the future without first obtaining leave of the court.

Key takeaways

We await to see how often the court will be requested to make harmful proceedings orders in future, and in what circumstances they will be made. As a tool to assist with the protection of children and their parents and judicial efficiency, the introduction of s102QAC is a welcome measure.

¹ [2024] FedCFamC2F 870