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New Proposed Bill to Prevent Misuse of Family Court Legal Proceedings

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The Victims of Family Violence (Strengthening Legal Protections) Legislation Bill introduces pivotal reforms aimed at protecting victims of family violence from being further harmed through the misuse of legal proceedings. This article explores the key provisions of the new Section 12B, which addresses litigant abuse in family law cases.

The new Section 12B, to be inserted after Section 12A in the Family Court Act 1980, is a significant addition to the legal framework. It provides judges with enhanced authority to restrict parties involved in family law proceedings from abusing the court process. Here’s a detailed examination of the provisions and their implications.

According to the new section, Litigant abuse means abuse of another party to the proceedings, and—

  • includes conduct that is intended to annoy, harass, or harm that other party, or that amounts to psychological abuse (as defined in section 11 of the Family Violence Act 2018); and
  • may include a number of acts that form part of a pattern of behaviour (even if all or any of those acts, when viewed in isolation, appear to be minor or trivial)

1. Definition and Application of Litigant Abuse

  • Clause 12B(1): This clause applies when a judge determines that a party to a proceeding under a specified Act has engaged in conduct that constitutes “litigant abuse.” Litigant abuse refers to behavior intended to harass, annoy, or cause psychological harm to another party. The judge must also ensure that the offending party has been given a reasonable opportunity to be heard.

2. Restrictions on Legal Actions

  • Clause 12B(2): Judges are empowered to impose restrictions on a party’s ability to:
    • Take further steps in ongoing proceedings, including interlocutory actions.
    • Engage in related proceedings under a specified Act where abuse has been identified.
    • Commence new proceedings or take steps in new proceedings under any specified Act. These Acts include:
      • Status of Children Act 1969
      • Domestic Actions Act 1975
      • Property (Relationships) Act 1976
      • Family Proceedings Act 1980
      • Child Support Act 1991
      • Care of Children Act 2004
      • Family Violence Act 2018

3. Considerations for Imposing Orders

  • Clause 12B(4): When making orders, judges must consider:
    • The party’s conduct within and outside of the proceeding, including any actions aimed at harassment or annoyance.
    • Any patterns of behavior that constitute litigant abuse or psychological abuse.

4. Duration and Appeals

  • Clause 12B(5): Orders under this section are effective for up to three years, with the possibility of extending to five years under extraordinary circumstances.
  • Clause 12B(6): Parties affected by such orders can appeal to the High Court, ensuring an avenue for challenging restrictive measures.

5. Interaction with Other Legal Provisions

  • Clause 12B(7): This section does not limit other legal provisions or the inherent powers of the court to restrict proceedings

Our Submissions on this bill:

In December 2023, we have filed our submissions on this bill highlighting that, we commended the objective of this bill, However, there are specific aspects of the bill
that we find particularly unjustifiable and are overly concerning.

Some of the points mentioned in our submissions were accepted are as follows:

  • Subsection 8(b) That the conduct that is intended to annoy, harass, or harm that other party, should amount to psychological abuse (as defined in section 11 of the Family Violence Act 2018); page 15, 12, 13  of our submissions.
  • Subsection (3) The right of the banned party to appeal or judicially review the Family Court decision. page 12 of our submissions.
  • Also it was proposed that s141 of the Care of Children Act 2004 to be repealed – However we highlighted in our submissions page 5 – that this section should not be repealed.

You can read our submissions on this link

Disclaimer: This post is for informational purposes only and does not constitute legal advice. The information is based on sources available as of the publication date.

 

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