Introduction

Proceedings in the Family Court can be slow and are almost always costly. Therefore, the possibility of quickly dismissing the other party’s case is attractive.

Frivolous or Vexatious Proceedings

Section 118 of the Family Law Act contains the following provision:

(1)     In proceedings under this Act the court hearing the proceedings may at any stage of the proceedings if it is satisfied that the proceedings are frivolous or vexatious –

  • dismiss the proceedings;
  • make such order as to costs as the court thinks just; and
  • if the court thinks fit, on the application of a party to the proceedings, order that the person who instituted the proceedings cannot, without leave of the court or another court, institute proceedings under this Act of the kind or kinds specified in the order,
    and an order made by the court under paragraph (c) has effect despite any other provision of this Act.

(2)     If a court makes an order under subsection (1)(c) then the Court or the court which made the order may discharge or vary the order.

By this section, the Family Court may dismiss an application which is “frivolous or vexatious”.

Sections 102Q – 102 QG

In 2013 the Family Law Act was amended to allow the Court to dismiss vexatious proceedings that had been frequently instituted.

Vexatious proceedings are defined as including:

  • proceedings that are an abuse of the process of a court or tribunal; and
  • proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose;
  • proceedings instituted or pursued in a court or tribunal without reasonable ground; and
  • proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

The new sections appear to be more particularly directed to the habitual litigant hence the apparent double requirement under Section 102QB(1)(a) that the proceedings be “frequently instituted” as well as vexatious.

The section may have limited application but once an order is made under Section 102QB the Court may totally ban or restrict future proceedings as well as dismiss proceedings already instituted.

Not Reasonably Arguable

The Court may also dismiss a claim which, whilst not in the category of frivolous and vexatious, is not “reasonably arguable”.

In Bigg v Suzi, a 1998 case, the Court said that not only did it have power to summarily dismiss an application which could not succeed but also, the Court had inherent power to dismiss or permanently stay an application.

The Court found that it was necessary to show that “the parties seeking it [summary judgment] must show that it is clear, on the face of the opponent’s documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious”.

The Court added a qualification to the above opinion: “An opinion of the Court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant termination. Even a weak case is entitled to the time of a Court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an unpromising cause into a successful judgment”.

Making an Application

If a decision is made to seek dismissal of a hopeless or vexatious application how is it done? The usual means of applying would be by way of an application in a case seeking an order that “the application filed by the Applicant be summarily dismissed”.

It is appropriate to file an affidavit in support of the application because the legal onus remains on the person making the application to show that there was no serious question to be tried. In Bigg v Suzi the Court said that the party seeking summary judgment “must show that it is clear, on the face of the opponent’s documents, that the opponent lacks a reasonable cause of action”. An affidavit is therefore required to set out any relevant facts to explain why the opponent’s application ought to be dismissed.

The application to dismiss should not be made lightly but typical situations in which these applications are made include where the other party makes repeated applications, or tries to re-open cases which have been decided, and appeals which have no chance of success.