Commonwealth Numbered Acts Commonwealth Numbered ActsPart 1 -- Harmful proceedings orders and co-location of sections 45A and 102Q
1 Section 45A
Repeal the section.
2 Part XIB (heading)
Repeal the heading, substitute:
Part XIB -- Decrees and orders relating to unmeritorious, harmful, and vexatious proceedings
3 Before section 102Q
Insert:
This Part sets out the court's powers to deal with proceedings that are unmeritorious, harmful, or vexatious.
Unmeritorious proceedings are proceedings that are without reasonable prospect of success, frivolous, vexatious, or an abuse of process.
Harmful proceedings are proceedings that may result in harm to another party, or to a child involved in the proceedings. The kinds of harms that might provide grounds for such an order could include severe stress (that could arise, for example, from repeated filings of applications against the respondent).
Vexatious proceedings include proceedings that are an abuse of process, proceedings instituted without reasonable grounds, and proceedings instituted or conducted for a wrongful purpose.
4 Subsection 102Q(1)
Insert:
"harmful proceedings order " means an order made under subsection 102QAC(1).
5 Section 102QA
Repeal the section, substitute:
102QA Interactions between provisions and with other powers of court
The provisions of this Part do not limit or otherwise affect:
(a) each other; or
(b) any other power that a court has to deal with proceedings.
6 After section 102QA
Insert:
Division 1A -- Summary decrees
No reasonable prospect of successfully defending proceedings
(1) The court may make a decree for one party (the first party ) against another in relation to the whole or any part of proceedings if:
(a) the first party is prosecuting the proceedings or that part of the proceedings; and
(b) the court is satisfied that the other party has no reasonable prospect of successfully defending the proceedings or that part of the proceedings.
No reasonable prospect of successfully prosecuting proceedings
(2) The court may make a decree for one party (the first party ) against another in relation to the whole or any part of a proceedings if:
(a) the first party is defending the proceedings or that part of the proceedings; and
(b) the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.
When there is no reasonable prospect of success
(3) For the purposes of this section, a defence or proceedings or part of proceedings need not be:
(a) hopeless; or
(b) bound to fail;
to have no reasonable prospect of success.
Proceedings that are frivolous, vexatious or an abuse of process
(4) The court may dismiss all or part of proceedings at any stage if it is satisfied that the proceedings or the part is frivolous, vexatious or an abuse of process.
(5) To avoid doubt, proceedings or a part of proceedings are not frivolous, vexatious or an abuse or process merely because an application relating to the proceedings or the part is made and later withdrawn.
Costs
(6) If the court makes a decree, or dismisses all or part of proceedings, under this section, the court may make such order as to costs as the court considers just.
Action by court on its own initiative or on application
(7) The court may take action under this section on its own initiative or on application by a party to the proceedings.
Division 1B -- Harmful proceedings orders
Subdivision A -- Making harmful proceedings orders
102QAC Making harmful proceedings orders
Making harmful proceedings orders
(1) A court exercising jurisdiction in proceedings under this Act may make an order (a harmful proceedings order ) prohibiting a party (the first party ) to the proceedings from instituting proceedings under this Act against another party to the proceedings without the leave of the court under section 102QAG, if the court is satisfied that there are reasonable grounds to believe that:
(a) the other party would suffer harm if the first party instituted further proceedings against the other party; or
(b) in the case of child-related proceedings (within the meaning of Part VII)--the child who is the subject of the proceedings would suffer harm if the first party instituted further proceedings against the other party.
Note: Proceedings includes cross-proceedings and incidental proceedings (see subsection 4(1)).
(2) For the purposes of subsection (1), harm may include, but is not limited to, the following:
(a) psychological harm or oppression;
(b) major mental distress;
(c) a detrimental effect on the other party's capacity to care for a child;
(d) financial harm.
(3) In determining whether to make an order under subsection (1), the court may have regard to:
(a) the history of the proceedings under this Act between the first party and the other party; and
(b) whether the first party has frequently instituted or conducted proceedings against the other party in any Australian court or tribunal (including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section); and
(c) the cumulative effect, or any potential cumulative effect, of any harm resulting from the proceedings referred to in paragraphs (a) and (b).
(4) The court may make a harmful proceedings order on its own initiative or on application by a party to the proceedings.
(5) The court must not make a harmful proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.
(6) An order made under subsection (1) is a final order.
Order about notifying other party in relation to application for leave etc.
(7) If the court makes an order under subsection (1), the court must also make an order as to whether the court is to notify the other party, in the event that the first party makes an application under section 102QAE for leave to institute proceedings against the other party, of either or both of the following:
(a) that the application has been made;
(b) if the application is dismissed--that the application has been dismissed.
(8) The court must have regard to the wishes of the other party in making an order under subsection (7).
Subdivision B -- Consequences of harmful proceedings orders
102QAD Proceedings in contravention of harmful proceedings order
(1) If a person is subject to a harmful proceedings order prohibiting the person from instituting proceedings under this Act in a court having jurisdiction under this Act:
(a) the person must not institute proceedings in the court without the leave of the court under section 102QAG; and
(b) another person must not, acting in concert with the person, institute proceedings in the court without the leave of the court under section 102QAG.
(2) If proceedings are instituted in contravention of subsection (1), the proceedings are stayed.
(3) Without limiting subsection (2), the court may make:
(a) an order declaring proceedings are proceedings to which subsection (2) applies; and
(b) any other order in relation to the stayed proceedings it considers appropriate, including an order for costs.
(4) The court may make an order under subsection (3) on its own initiative or on the application of a person a party to the proceedings.
102QAE Application for leave to institute proceedings
(1) This section applies to a person (the applicant ) who is:
(a) subject to a harmful proceedings order prohibiting the person from instituting further proceedings under this Act in a court having jurisdiction under this Act; or
(b) acting in concert with another person who is subject to an order mentioned in paragraph (a).
(2) The applicant may apply to the court for leave to institute proceedings that are subject to the order.
Note: The court may be required to give notice that the application has been made (see subsection 102QAC(7)).
(3) The applicant must file an affidavit with the application that:
(a) lists all the occasions on which the applicant has applied for leave under this section; and
(b) discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.
(4) The applicant must not serve a copy of the application or affidavit on a person unless an order is made under section 102QAG. If the order is made, the applicant must serve the copy in accordance with the order.
102QAF Dismissing application for leave
(1) The court may make an order dismissing an application under section 102QAE for leave to institute proceedings if it considers the affidavit does not substantially comply with subsection 102QAE(3).
Note: The court may be required to give notice that the application has been dismissed (see subsection 102QAC(7)).
(2) The court must make an order dismissing an application under section 102QAE for leave to institute proceedings if it considers the proceedings are vexatious proceedings.
Note: The court may be required to give notice that the application has been dismissed (see subsection 102QAC(7)).
(3) The court may dismiss the application without an oral hearing (either with or without the consent of the applicant).
(4) The court may make an order under this section in Chambers.
102QAG Granting application for leave
(1) The court may make an order granting the application for leave only if it is satisfied that the proceedings are not frivolous, vexatious or an abuse of process, and have reasonable prospects of success.
(2) An order under subsection (1) may be made subject to the conditions the court considers appropriate.
7 Division 2 of Part XIB (after the heading)
Insert:
Subdivision A -- Making vexatious proceedings orders
8 Division 3 of Part XIB (heading)
Repeal the heading, substitute:
Subdivision B -- Consequences of vexatious proceedings orders
9 Section 102QE (heading)
After " proceedings ", insert " by person subject to vexatious proceedings order ".
10 Sections 102QF and 102QG (heading)
After " leave ", insert " by person subject to vexatious proceedings order ".
11 Subsection 117(1)
Omit "45A(6)", substitute "102QAB(6)".
Federal Circuit and Family Court of Australia Act 2021
12 Subsection 143(5) (note)
Omit "45A", substitute "102QAB".
13 Savings provision
To avoid doubt, the repeal of section 45A of the Family Law Act 1975 made by this Schedule does not affect any decree made or action taken under that section, as in force before the commencement of this item.
14 Application provision
The amendments of the Family Law Act 1975 made by this Part apply in relation to the following proceedings:
(a) proceedings instituted on or after the day this item commences;
(b) proceedings instituted before, and not finally determined by, the day this item commences.
Part 2 -- Overarching purpose of the family law practice and procedure provisions
15 Subsection 4(1)
Insert:
"family law practice and procedure provisions " has the meaning given by subsection 95(4).
16 Before Division 1 of Part XI
Insert:
Division 1A -- Overarching purpose of the family law practice and procedure provisions
95 Overarching purpose of the family law practice and procedure provisions
(1) The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:
(a) in a way that ensures the safety of families and children; and
(b) in relation to proceedings under this Act in which the best interests of a child are the paramount consideration--in a way that promotes the best interests of the child; and
(c) according to law; and
(d) as quickly, inexpensively and efficiently as possible.
Note: For family law practice and procedure provisions , see subsection (4).
(2) Without limiting subsection (1), the overarching purpose includes the following objectives in relation to proceedings under this Act:
(a) the just determination of all such proceedings;
(b) the efficient use of the judicial and administrative resources available for the purposes of courts exercising jurisdiction in such proceedings;
(c) the efficient disposal of the overall caseload of courts exercising jurisdiction in such proceedings;
(d) the disposal of all such proceedings in a timely manner;
(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3) The family law practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make applicable Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4) The family law practice and procedure provisions are the following, so far as they apply in relation to proceedings under this Act:
(a) the applicable Rules of Court;
(b) any other provision made by or under this Act, or any other Act, with respect to the practice and procedure of the Federal Circuit and Family Court of Australia or any other court .
96 Duty to act consistently with the overarching purpose
Duty of parties
(1) The parties to proceedings under this Act must conduct the proceedings (including negotiations for settlement of the dispute to which the proceedings relate) in a way that is consistent with the overarching purpose of the family law practice and procedure provisions.
Duty of lawyers
(2) A party's lawyer must, in the conduct of proceedings under this Act on the party's behalf (including in the conduct of negotiations for settlement of the dispute to which the proceedings relate):
(a) take account of the duty imposed on the party by subsection (1); and
(b) assist the party to comply with the duty.
Estimate of costs
(3) In proceedings under this Act a court may, for the purpose of enabling a party to comply with the duty imposed by subsection (1), require the party's lawyer to give the party an estimate of:
(a) the likely duration of the proceedings or part of the proceedings; and
(b) the likely amount of costs that the party will have to pay in connection with the proceedings or part of the proceedings (including the costs that the lawyer will charge to the party).
Costs orders
(4) In exercising the discretion to award costs in proceedings under this Act, a court must take account of any failure to comply with the duty imposed by subsection (1) or (2).
(5) Without limiting the exercise of that discretion, a court may order a party's lawyer to bear costs personally.
(6) If a court orders a lawyer to bear costs personally because of a failure to comply with the duty imposed by subsection (2), the lawyer must not recover the costs from the lawyer's client.
17 At the end of subsection 117(2)
Add:
Note 3: See also subsections 96(4) to (6) of this Act.
18 Application provision
The amendments of the Family Law Act 1975 made by this Part apply in relation to the following proceedings:
(a) proceedings instituted on or after the day this item commences;
(b) proceedings instituted before, and not finally determined by, the day this item commences, other than proceedings in respect of which a final hearing has commenced by the day this item commences.
Federal Circuit and Family Court of Australia Act 2021
19 Subsection 7(1) (definition of civil practice and procedure provisions )
Repeal the definition, substitute:
"civil practice and procedure provisions " :
(a) in relation to the Federal Circuit and Family Court of Australia (Division 1)--has the meaning given by subsection 67(4); and
(b) in relation to the Federal Circuit and Family Court of Australia (Division 2)--has the meaning given by subsection 190(4).
20 Subsection 7(1) (definition of family law practice and procedure provisions )
Repeal the definition.
21 Subsection 7(1) (paragraph (a) of the definition of overarching purpose )
Omit "family law practice and procedure provisions", substitute "civil practice and procedure provisions".
22 Section 67 (heading)
Omit " family law practice and procedure provisions ", substitute " civil practice and procedure provisions ".
23 Subsection 67(1)
Omit "family law practice and procedure provisions", substitute "civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 1),".
24 Subsection 67(1) (note 1)
Repeal the note, substitute:
Note 1: For civil practice and procedure provisions , in relation to the Federal Circuit and Family Court of Australia (Division 1), see subsection (4).
25 Subsection 67(3)
Omit "family law practice and procedure provisions", substitute "civil practice and procedure provisions, in relation to the Federal Circuit and Family Court of Australia (Division 1),".
26 Subsection 67(4)
Omit "The family law practice and procedure provisions are the following,", substitute "The civil practice and procedure provisions , in relation to the Federal Circuit and Family Court of Australia (Division 1), are the following,".
27 Subsection 68(3) (note)
Repeal the note.
28 After section 68
Insert:
68A Proceedings under the Family Law Act 1975
Sections 67 and 68 do not apply in relation to proceedings under the Family Law Act 1975 .
Note: See sections 95 and 96 of the Family Law Act 1975 for the overarching purpose of provisions dealing with the practice and procedure of courts (including the Federal Circuit and Family Court of Australia) in relation to proceedings under that Act.
29 Subsection 190(1)
After "civil practice and procedure provisions", insert ", in relation to the Federal Circuit and Family Court of Australia (Division 2),".
30 Subsection 190(1) (note 1)
Repeal the note, substitute:
Note 1: For civil practice and procedure provisions , in relation to the Federal Circuit and Family Court of Australia (Division 2), see subsection (4).
31 Subsection 190(3)
After "civil practice and procedure provisions", insert ", in relation to the Federal Circuit and Family Court of Australia (Division 2),".
32 Subsection 190(4)
Omit "are the following,", substitute ", in relation to the Federal Circuit and Family Court of Australia (Division 2), are the following,".
33 Subsection 191(3) (note)
Repeal the note.
34 After section 191
Insert:
191A Proceedings under the Family Law Act 1975
Sections 190 and 191 do not apply in relation to proceedings under the Family Law Act 1975 .
Note: See sections 95 and 96 of the Family Law Act 1975 for the overarching purpose of provisions dealing with the practice and procedure of courts (including the Federal Circuit and Family Court of Australia) in relation to proceedings under that Act.
35 Application provision
The amendments of the Federal Circuit and Family Court of Australia Act 2021 made by this Part apply on and after the day this item commences in relation to:
(a) proceedings instituted before that day that were not finally determined before that commencement; and
(b) proceedings instituted on or after that day.