Case Summary

Wanderley [2026] FedCFamC1A 140

FCFCOA (Division 1), Appellate Jurisdiction•Schonell J•7 August 2026

Harmful proceedings orders s 102QAC s 102QAE s 102QAF Leave to appeal

Leave to appeal refused; Application in an Appeal dismissed as vexatious

“

The applicant seeks to import words of limitation or qualification where none appear. The section does not require the person who is the subject of the application to have been unsuccessful in prior proceedings. No part of the Court’s consideration focuses upon the success or otherwise of the applications. Rather, it is the proceedings themselves, the frequency with which they have been instituted and the cumulative or potentially cumulative, effect of any resulting harm that is relevant.

Schonell J at [26]

Summary

Proceedings on foot since early 2021 had generated some 492 filed documents and no fewer than 31 sets of orders. The mother, supported by the ICL, applied for a harmful proceedings order under s 102QAC. The Magistrate accepted that she had bipolar affective disorder and PTSD, and that the parties' eight-year-old child (with level 3 non-verbal autism, severe global developmental delay and ADHD) was highly dependent on her and vulnerable to any deterioration in her parenting capacity. Satisfied there were reasonable grounds to believe both would suffer harm if further proceedings were instituted, the Magistrate made the order. The father, now requiring leave under s 102QAE, said his applications were legitimate, arising from the mother's deficient financial disclosure.

Schonell J refused leave. Central to the reasons is the distinction between harmful proceedings orders and vexatious proceedings orders under s 102QB. The latter looks to the litigant's intent and conduct; the former is a proactive, protective jurisdiction directed at avoiding harm, so an order may be made in the absence of malicious intent. The threshold 'reasonable grounds to believe' is prospective and established to a lesser standard than the balance of probabilities, and neither a pattern of conduct nor a series of unmeritorious applications is required; a single application may suffice.

The grounds directed at the merits and outcomes of individual applications sought to read into s 102QAC words of limitation that are not there. The ground about an unresolved inconsistency in the mother's affidavit failed because the Magistrate was not required to determine disputed facts, and the proportionality ground failed because it had not been run below. With no ground of merit, the proposed appeal was vexatious within s 102Q(1), so dismissal was mandatory under s 102QAF(2).

Key Takeaways

✓

HPOs and vexatious proceedings orders do different work. An HPO is protective and prospective and may be made without any malicious intent on the part of the person restrained: [17]–[19].

✓

The focus is the proceedings, their frequency, and the cumulative or potential cumulative effect of the harm, not whether earlier applications succeeded or were brought for a proper purpose: [26].

✓

The threshold is 'reasonable grounds to believe' that harm would be suffered, lower than the balance of probabilities: [20].

✓

No pattern need be proved; a single application may suffice: [21], citing Lamport & Garside [2024] FedCFamC2F 1007.

✓

Harm is defined non-exhaustively in s 102QAC(2): psychological harm or oppression, major mental distress, a detrimental effect on capacity to care for a child, and financial harm.

✓

Procedural essentials: no ex parte HPO order can be made – it requires the subject to be heard (s 102QAC(5)); a HPO is a final order (s 102QAC(6)); a HPO may be made on the court's own initiative; the court need not resolve disputed facts: [22], [27].

✓

Once leave is refused for want of merit the proposed proceeding is vexatious and dismissal is mandatory under s 102QAF(2): [15], [29].