Abuse of process

False or misleading evidence about family violence

Section 117AB of the Family Law Act requires a court to make a costs order against a person who ‘knowingly made a false allegation or statement in the proceedings’. This section was included to address ‘concerns expressed, in particular that allegations of family violence and abuse can be easily made and may be taken into account in family law proceedings’.^[6] There is no specific provision in the Family Law Act to deal with false denials of family violence.

As discussed in Chapter 8, the Chisholm Review raised concerns that this provision could impede the disclosure of family violence in cases where a vulnerable parent’s allegations of family violence cannot be corroborated by reliable evidence.^[7] The Chisholm Review recommended that the costs order provision in s 117AB of the Family Law Act should be repealed and suggested that consideration should instead be given to amending the general costs provision in s 117 of the Act to direct a court to have regard to whether any person knowingly gave false evidence in the proceedings.^[8] This kind of provision would cover both false allegations and false denials of family violence. In addition, the Family Law Council found that there is no evidence that s 117AB ‘has achieved its purpose’ in relation to false allegations of family violence and recommended that the Attorney-General give consideration to clarifying the intention of s 117AB, either through legislative amendment or public education.^[9]

The Commissions’ preliminary view is that existing measures to sanction persons who give false evidence of family violence are sufficient. Such measures include the courts’ power to dismiss vexatious applications and award costs against a person who brings a vexatious application. The Commissions consider that these measures are sufficient safeguards against giving false evidence before courts generally and that there is no need for specific provisions relating to false allegations of family violence.

The Commissions endorse the recommendations made in the recent reviews of the Family Law Act by Chisholm and the Family Law Council relating to s 117AB of the Family Law Act, and note that false denials of family violence, as well as false allegations, should trigger the court’s discretion to make a costs order.

Vexatious applications in protection order proceedings

Vexatious applications in protection order proceedings under state and territory family violence legislation can be a means for a person to misuse the legal system to harass or intimidate a victim of family violence. In addition, because the existence of certain kinds of protection order is a relevant consideration to be taken into account by a court when making orders under the Family Law Act, vexatious applications for protection orders have the potential to affect the operation of both the family law and state and territory family violence regimes.

Courts exercising jurisdiction under state and territory family violence legislation should be able to respond to the misuse of protection order provisions—in particular, vexatious applications for protection orders made to harass or intimidate victims of family violence or other persons. The Commissions are particularly concerned about the risk that a person subject to vexatious applications may be pressured to consent to a protection order, or do so in order to avoid repeated appearances in court.

The Commissions consider that there is merit in allowing courts to order that a person who has brought several vexatious applications or cross applications for protection orders against the same person without reasonable grounds may not make further applications except with the leave of the court. The Victorian family violence legislation—which has comprehensive vexatious litigant provisions—and the South Australian family violence legislation—which allows a judicial officer to strike out an application at a preliminary stage before a respondent is served—provide instructive models. The Commissions recognise that provisions that inhibit a person’s ability to bring an application before a court can be inconsistent with the principle that justice should be accessible and open to all. However, such provisions may be justified to protect people from having to defend unreasonable and repeated applications for protection orders and to prevent abuse of the protection order system.

Vexatious cross applications

The Commissions are also concerned about the misuse of cross applications for protection orders, and in particular about the potential for respondents to make cross applications in order to harass a victim of family violence or to affect concurrent or pending family law proceedings. The Commissions note that cross applications can be made for legitimate reasons—for example, where both parties have engaged in violent conduct. The Commissions also note that courts already have power to dismiss a cross application if it is made without reasonable grounds, or brought in order to harass or intimidate a person.

However, given concerns expressed about the misuse of cross applications, and the difficulties involved in making and enforcing mutual protection orders by consent, the Commissions consider that safeguards are required to prevent the misuse of cross applications. The Commissions consider that the family violence legislation in Victoria, based on recommendations by the VLRC, provides an instructive model, and propose that mutual orders should not be made by consent. Instead, a court should make a mutual protection order only where it is satisfied that the grounds for a protection order have been made out by both parties.

Vexatious applications to vary or revoke protection orders

There are also concerns that some respondents make repeated applications to vary or revoke a protection order as a way to harass or intimidate a person who has obtained a protection order against them. The Commissions consider that there is merit in requiring that a respondent to a protection order seek leave from the court before making an application to vary or revoke a protection order made against them. A provision of this kind will ensure that a variation or revocation is only sought by the respondent when there are reasonable grounds to do so—such as a change in the circumstances since the original order was made—and protect against vexatious applications against the victim of family violence.