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University of Otago Law Theses and Dissertations |
Last Updated: 11 April 2024
LEGALLY JUSTIFIED ABUSE?
PROTECTING AGAINST ABUSIVE LITIGATION IN FAMILY LAW PROCEEDINGS IN NEW ZEALAND
MOLLY HURLEY
A dissertation submitted in partial fulfilment of the requirements of the degree of Bachelor of Laws (Honours) at the University of Otago - Te Whare Wānanga o Otāgo
6 October 2023
ACKNOWLEDGMENTS
Thank you to my supervisor, Dr Bridgette Toy-Cronin, for your feedback and kind words.
This dissertation would not have been possible without your patience and expertise.
To those who have helped me along the way, in particular Nicola Taylor and Emily Henderson, for taking the time to share your invaluable insights with me.
To my wonderful friends, for your assistance, eagerness to listen and all the good times.
To my family, especially my parents, for everything.
Finally, thank you to Matt for your endless encouragement, proofreading expertise and for being my number one supporter – I could not have done this without you.
All errors, of course, remain my own.
TABLE OF CONTENTS
LIST OFABBREVIATIONS
ALRC Australian Law Reform Commission
IRD Inland Revenue Department
MPs Members of Parliament
NZLS New Zealand Law Society
NZBORA New Zealand Bill of Rights Act 1990
SPCA Society for the Prevention of Cruelty to Animals
The Family Acts Family Proceedings Act 1980, Oranga Tamariki Act 1989, Child Support Act 1991, and Care of Children Act 2004
INTRODUCTION
New Zealand has the highest rate of reported intimate partner violence in the developed world, with estimates suggesting that one in three women, and one in eight men, will be victims of family violence during their lifetime.1 There is a common misconception that when victims leave these relationships, the abuse stops. This is not always the case.2 Some abusers strive to maintain control over victims even after separation, including through the use of the legal system.3 By using the court as a tool of abuse, not only is the victim forced to maintain contact and engage with their abuser, but the abuse inflicted against them appears legally justified and is often hidden by the “veneer of legitimacy” offered by the law.4
Abusive litigation – also known as legal systems abuse, paper abuse, procedural stalking, or legal bullying – is difficult to define and identify given the confrontation inherent in an adversarial legal system and the nature of family law proceedings.5 As an adversarial legal system necessitates two opposing parties in direct conflict, and family law proceedings generally involve an environment complicated by many social and personal challenges, it follows that family law proceedings can often be confrontational and hostile, regardless of whether actual abuse is occurring.6 For the purposes of this dissertation, abusive litigation
1 “Family Violence Statistics – International” Good Shepherd New Zealand <www.goodshepherd.org.nz>.
2 Susan Miller and Nicole Smolter “”Paper Abuse”: When All Else Fails, Batterers Use Procedural Stalking” (2011) 17(5) Violence Against Women 637 at 637; and Sandra Goundry Final Report on Court-Related Harassment and Family Law “Justice”: A Review of the Literature & Analysis of Case Law (Vancouver Association of Women and the Law, March 1998) at 16.
3 Anna McLemore “Stalking by Way of the Courts: Tennessee’s Abusive Civil Action Law and Why All States Should Adopt a Similar Approach to Abusive Litigation in the Family Law Context” (2021) 28 UCLA Journal of Gender and the Law 333 at 333.
4 Heather Douglas “Legal systems abuse and coercive control” (2018) 18(1) Criminology and Criminal Justice 84 at 85; and Bridgette Toy-Cronin “Responding to abusive litigation: Short v Short” (2022) 7 NZWLJ 64 at 68.
5 Nicolas Bala “Exploring Litigation Abuse in Ontario: An Analysis of Costs Decisions” (paper presented to International Society of Family Law Conference, Antwerp, July 2023); and Andrea Vollans Court-Related Abuse and Harassment (YWCA Vancouver, 2010) at 5; Ellen Gutowski and Lisa Goodman “Coercive Control in the Court Room: the Legal Abuse Scale (LAS)” (2023) 38 J Fam Violence 527 at 528; and Mary Przekop “One More Battleground: Domestic Violence, Child Custody, and the Batterers Relentless Pursuit of Their Victims through the Courts” (2010-2011) 9 Seattle Journal for Social Justice 1053 at 1063.
6 Negar Katirai “Retraumatised in Court” (2020) 62 Ariz L Rev 81 at 102 & 104; and Goundry, above n 2, at 35.
refers to the misuse of the legal arena, court procedure, and related mechanisms, as a vehicle of abuse and means to continue to coerce, control and maintain contact with the victim.7
In a survey conducted with 500 women who had been involved in proceedings in the New Zealand Family Court, 50 per cent reported they had experienced abusive litigation.8 Currently, there are no explicit protections in New Zealand law for these victims, who are forced to engage with such abuse or face the consequences of failing to respond to proceedings. As a result, victims are often exposed to continuous abuse without reprieve; not only does this affect the victims physically, mentally and financially, but also any children involved and all other families on the courts’ overcrowded waiting list.9
To address this gap within the law, this dissertation proposes the introduction of targeted legislative protections against abusive litigation in New Zealand. Abusive litigation protections are currently subsumed within vexatious proceedings legislation, which results in the conduct being mislabelled, poorly understood and seldom restricted. This is insufficient – the issue must be dealt with explicitly.
7 Bala, above n 5; Vollans, above n 5, at 5; and Gutowski and Goodman, above n 5, at 527.
8 Out of the Frying Pan and into the Fire: Women’s Experiences of the New Zealand Family Court (The Backbone Collective, April 2017) at 2. This survey was conducted online via Facebook and Backbone Collective’s website and was also made available over the phone. It involved 108 pre-tested questions and yielded 612 valid responses. In measuring abusive litigation the survey asked participants to identify behaviour engaged in by the other party during proceedings from a list of common abusive litigation tactics. As the survey was voluntary it may have attracted interest from those with poor Family Court experiences, meaning the results could be skewed. Nevertheless, it indicates that abusive litigation is a live issue in the Family Court.
9 Sophie Trigger “Court system delays continue to create backlogs” (12 July 2023) NZ Herald
<www.nzherald.com>. Current reporting states the number of families waiting more than three years for resolution in the Family Court has tripled over the last five years (outlining family court waiting times); Camilla Nelson and Catherine Lumby “Litigation Abuse” in Broken: Children, Parents and Family Courts (La Trobe University Press, Carlton, 2021) 26 at 28; and Robert Nonomura and others “When the Family Court Becomes the Continuation of Family Violence After Separation: Understanding Litigation Abuse”(2022) 15 Family Violence & Family Law Brief 3 at 3 (presenting evidence of the effect on victims).
It is important to note that while the nature of family law provides a fertile breeding ground for abusive litigation, this behaviour is not limited to such proceedings and can occur in all areas of the law. Protections against abusive litigation should, therefore, be available in all proceedings but the research in this dissertation is limited to the most common site for abusive litigation: family law proceedings involving the care of children. In these cases, a relationship breakdown occurs and as children justify ongoing parental interaction, litigation surrounding their care can be used as a form of abuse that allows the perpetrator to continue to control and maintain contact with the victim.10
This presents several issues. Not only are children being used as “pawns” or “tools” to exact harm, but the nature of law surrounding the care of children ensures that such abuse can be continued indefinitely as there is seldom an element of finality to any decisions; any alleged change in circumstance or perceived infraction could be grounds for initiating further proceedings to make, vary or repeal an order.11 In these circumstances, litigation surrounding the care of children creates the “perfect storm” for abusive litigation to occur.12
As the care of children can involve applications brought under various legislation, this dissertation will look at available protections contained in the Family Proceedings Act 1980, Oranga Tamariki Act 1989, Child Support Act 1991, and Care of Children Act 2004 (“the Family Acts”).13 It will also explore protections contained in the Family Court Rules 2002,
10 Vivienne Elizabeth “Custody Stalking: A Mechanism of Coercively Controlling Mothers Following Separation” (2017) 25 Fem Leg Stud 185 at 187; Emmaline Campbell “How domestic violence batterers use custody proceedings in family courts to abuse victims, and how courts can put a stop to it” (2017) 24 UCLA Women’s LJ 41 at 55; and Goundry, above n 2, at 35 and 41.
11 Goundry, above n 2, at 35 and 41; Toy-Cronin, above n 4, at 73; and Deanne Sowter “The Future Harm Exception: Coercive Control as Serious Psychological Harm and the Challenges for Lawyers’ Ethics” (2021) 44 DLJ 603 at 630.
12 Nelson and Lumby, above n 9, at 27.
13 This does not account for all legislation which care of children proceedings can be brought under. These Acts were singled out due to being frequently referenced in the case law on abusive litigation.
District Court Rules 2014, the High Court Rules 2016, Senior Court Act 2016 and the common law more generally. The breadth of the research is to ensure consideration of all situations where care of children can be used to facilitate abusive litigation, so as to provide a comprehensive review of the current law in New Zealand. This approach to the research also reflects the treatment of abusive litigation in case law, as courts may look to associated Acts or judicial tools when providing protection against abusive litigation (discussed further in Chapter Two).
Chapter One explores the nature of abusive litigation through reference to coercive control, and engages in a review of the case law in New Zealand. It also distinguishes abusive litigation from vexatious litigation and emphasises the need for differential treatment of the two. The current approach to protecting against abusive litigation in New Zealand is then explained in Chapter Two. It draws on the case review conducted in Chapter One to describe the legislative and common law tools utilised by the courts to protect against abusive litigation, before highlighting the potential issues with the current approach.
In considering alternative approaches to abusive litigation, Chapter Three describes the protections against abusive litigation adopted in three comparable jurisdictions: Australia, the United States (Washington and Tennessee) and British Columbia. It examines the operation of these specific regimes and assesses the suitability of each regime in protecting against abusive litigation.
Finally, Chapter Four looks to the future and recommendations for reform. It considers the current proposal under the Victims of Family Violence (Strengthening Legal Protections) Legislation Bill and explores its effectiveness in offering protection, before proposing the
adoption of a comprehensive and targeted legislative regime and providing recommendations of what this should look like. It also considers the inherent tensions that must be acknowledged when developing protections that affect individuals’ access to the courts.
Abusive litigation can happen to anyone – male, female, or non-binary. With that being said, the inherent and systemic power imbalances contained within existing social structures – including the legal and court systems – see that abusive litigation is more often committed by men and against women.14 Therefore, while the language in this dissertation will remain gender neutral, any references to others work will be quoted directly, and thus may contain gendered language.
14 Gutowski and Goodman, above n 5, at 535; and Bala, above n 5.
CHAPTER ONE: ABUSIVE LITIGATION IN PRACTICE
Abusive litigation occurs in New Zealand but is often hidden by a misunderstanding and mislabelling of the behaviour, and by the legitimacy afforded to it by the legal system.15 It follows that a comprehensive understanding of the presentation of abusive litigation is necessary to accurately identify and mitigate abusive litigation. This chapter looks to establish such understanding through consideration of a coercive control lens and a review of abusive litigation in New Zealand case law.
I Identifying Abusive Litigation
A major obstacle in providing protections against abusive litigation is recognising the behaviour for what it is.16 As previously mentioned, abusive litigation often presents as legitimate and is therefore allowed to continue without consequence.17 To combat this, and help foster greater understanding of abusive litigation, commentators have proposed the adoption of a coercive control lens. 18
Coercive control, first coined by Evan Stark, is a type of family violence and a form of self- interested behaviour focused on patterns of abuse which aim to “secure and expand gender- based privilege” by exercising power in a way intended to limit the freedom of others, often an
15 Nelson and Lumby, above n 9, at 27; and Toy-Cronin, above n 4, 68.
16 Przekop, above n 5, at 1074; and Gutowski and Goodman, above n 5, at 528.
17 Sowter, above n 11, at 630.
18 Toy-Cronin, above n 4; Douglas “Legal systems abuse”, above n 4; Gutowski and Goodman, above n 5; Nonomura and others, above n 9; Bala, above n 5; Przekop, above n 5; Nelson and Lumby, above n 9; Elizabeth, above n 10; Emma Fitch and Patricia Easteal “Vexatious litigation in family law and coercive control: ways to improve legal remedies and better protect the victims” (2017) 7 Fam L Rev 103; Heather Douglas Women, Intimate Partner Violence, and the Law (Oxford University Press, New York, 2021); Maddy Coy and others “‘It’s like going through the abuse again’: domestic violence and women and children’s (un)safety in private law contact proceedings” (2015) 37 JSWL 53; Sylvia Walby and Jude Towers “Untangling the concept of coercive control: Theorising domestic violent crime” (2018) 18(1) Criminology & Criminal Justice 7; Vivienne Elizabeth, Nicola Gavey and Julia Tolmie “”...He’s Just Swapped His Fists for the System” The Governance of Gender Through Custody Law” (2012) 26(2) Gend Soc 239.
intimate partner.19 Perpetrators of coercive control may employ a wide range of abusive behaviours in order to exert control over a victim; they may do so directly, through physical violence or threats and intimidation, or indirectly by using the victim’s trauma, vulnerabilities, or children against them.20 There is a specific emphasis on the cumulative impact of controlling behaviour and the effect this may have on a victim’s identity, autonomy and support networks.21
It follows that abusive litigation can therefore be understood as an “enactment of coercive control through legal processes”.22 Abusive litigation offers an effective way for coercive control to manifest as it employs legally justified tactics as a means of achieving this end, making it difficult to identify and prevent.23 As noted by Nonomura and others: “Litigation abuse exploits the principles of due process, access to justice, and adversarial court proceedings as a way to weaponize the power of the legal system against a former partner.” 24
It may be that the parties have legitimate reasons to engage with the courts post-separation, for example, to organise the care of children or payment of child support. However, the context in which the litigation takes place indicates that the purpose of the proceedings may stretch beyond legitimate grounds.25 It is for this reason that a coercive control lens necessitates
19 Evan Stark “Coercive Control” in Nancy Lombard and Lesley McMillan (eds) Violence against women: current theory and practice in domestic abuse, sexual violence, and exploitation (Jessica Kingsley Publishers, London, 2013) at 21. For further guidance on coercive control see also: Cassandra Wiener Coercive Control and the Criminal Law (Routledge, New York, 2023); Nonomura and others, above n 9, at 4; and Przekop, above n 5, at 1058.
20 Nonomura and others, above n 9, at 4; and Heather Douglas and Emma Fell “Malicious Reports of Child Maltreatment as Coercive Control: Mothers and Domestic and Family Violence” (2020) 35 J Fam Violence 827 at 828.
21 Evan Stark “Rethinking custody evaluation in cases involving domestic violence” (2009) 6 J Child Custody 287 at 294; and Douglas and Fell, above n 20, at 828.
22 Gutowski and Goodman, above n 5, at 528.
23 Nonomura and others, above n 9, at 5; and Douglas “Legal systems abuse”, above n 4, at 85.
24 Nonomura and others, above n 9, at 5.
25 Douglas “Legal systems abuse”, above n 4, at 85.
looking at the proceedings in the context of the entire relationship and not just as “fragment patterns of harm... [turned] into individual and decontextualised incidents”.26
A coercive control lens is useful to adopt in this context. Not only does it provide context for how power and control are operating within the relationship, thus allowing the court to properly recognise and address abuse, it also helps overcome the narrative that abuse ends following separation.27 If coercive control is viewed as a mechanism of family violence, then it becomes unsurprising that abusers seek to continue such abuse through other means like the courts.28 As such, a coercive control lens may put the court on notice when handling cases marked by a history of family violence as it is unlikely separation has broken the pattern of abuse, and more likely it has resulted in a diversification of abuse tactics.29
Understanding abusive litigation in this way allows courts to recognise the litigation for what it is – a form of violence conducted through coercive control. When this happens, it prevents the courts from missing the abuse or mislabelling it as “vexatious” or “misguided”, as well as overturning the precedent that such abuse is legally justified.30 Many common law jurisdictions now legally acknowledge that family violence involves a complex pattern of coercive and controlling behaviour.31 In New Zealand, coercive control is recognised as a form of family violence in legislation, although it has seldom been used to its full effect, or considered in the context of abusive litigation.32 This is because, unfortunately, coercive control is currently
26 Julia Tolmie and Khylee Quince “Commentary on Police v Kawiti: Kāwiti at the Centre” in Elisabeth McDonald et al (eds) Feminist Judgments of Aotearoa New Zealand. Te Rino: A Two-Stranded Rope (Hart Publishing, Oxford Portland, Oregon, 2017) at 485.
27 Nonomura and others, above n 9, at 11; and Przekop, above n 5, at 1060.
28 Przekop, above n 5, at 1060.
29 Przekop, above n 5, at 1060; Elizabeth, above n 10, at 188; and Goundry, above n 2, at 16.
30 Toy-Cronin, above n 4, at 70; and Douglas “Legal systems abuse”, above n 4, at 85.
31 Douglas “Legal systems abuse”, above n 4, at 94. For examples of common law jurisdictions giving legal effect to coercive control see: Family Law Act SBC 2011 c 5, s 38(d); and Family Law Act (Cth), s 4AB.
32 Family Violence Act 2018, s 9(3). No cases could be found which saw abusive litigation considered in light of this provision.
poorly understood by legal professionals due to the complexity of the concept and the growing uncertainty regarding the distinction between family violence and coercive control.33 Nevertheless, it provides valuable method of understanding and conceptualising abusive litigation.
II Abusive Litigation in New Zealand Case Law
This section looks to assess the presentation of abusive litigation through a review of New Zealand case law. This review involved a close analysis of the factual background and conduct of the parties as evident in the judgment(s) and was informed by overseas literature which helped identify common features of abusive litigation and coercive control in this context.34
There are limitations to this case review; abusive litigation is not recognised in New Zealand law, meaning such conduct is often poorly understood and is seldom identified or correctly labelled. Further, when abusive litigation is identified, it is often treated as a peripheral issue and the full matrix of facts behind the proceedings is frequently left out. Consequently, it was difficult to assess the extent to which abusive litigation was present in each case and some cases which may have contained abusive litigation had to be omitted due to insufficient background information.35 Only cases with sufficient evidence of abusive litigation on the facts were included in this review.
33 Douglas Women, Intimate Partner Violence, and the Law, above n 18, at 33; Wiener, above n 19, at 29; and Nonomura and others, above n 9, at 4.
34 The cases included in the review were found through three methods: (1) using the following search terms and appropriate variations: “abusive litigation”, “systems abuse”, “litigation abuse”, “legal bullying”, “procedural stalking”, “paper abuse”; (2) looking at cases which engaged the vexatious proceedings and associated provisions in the Family Acts and the Family Court Rules 2002, High Court Rules 2016, District Court Rules 2014 and Senior Courts Act 2016; and (3) references from other cases and secondary sources. The cases were then screened to ensure they involved the care of children and contained sufficient evidence of abusive litigation. Only the cases available on the Westlaw and LexisAdvance databases were used; there are likely many more abusive litigation cases from the Family Court that have not been published. In total, 41 cases were reviewed in-depth, including fourteen cases involving the same parties, resulting in the total series of proceedings reviewed being 33.
35 This was similarly identified as an issue in conducting a comprehensive case analysis in Canada: Goundry, above n 2, at 44-47.
It follows that this review is incomplete. Therefore, rather than offering a comprehensive summary of all case law on the issue, the review looks to provide examples of how abusive litigation presents in New Zealand in the hopes of understanding how it is currently protected and how it might be better addressed in the future.
Following the review, a list of observed similarities was compiled and cross-referenced against the overseas literature which informed the initial review. The list is as follows:
36 David Ward “In Her Words: Recognising and Preventing Abusive Litigation Domestic Violence Survivors” (2015) 14 Seattle J Soc Just 429 at 439; Barbara Orser, Ester Lenskinski and Alana Shartz “Legal Bullying: Abusive Litigation within Family Law” 22 CFLQ 337 at 355.
37 Orser, Lenskinski and Shartz, above n 36, at 355; Douglas Women, Intimate Partner Violence, and the Law, above n 18, at 32; Vollans , above n 5, at 5 and 8-11; Nonomura and others, above n 9, at 3; Gutowski and Goodman, above n 5, at 534; Linda Neilson “Enhancing Safety: When Domestic Violence Cases are in Multiple Legal Systems” (paper presented to Family, Children and Youth Section Department of Justice Canada, Ottawa, 2013) at 31; and Kate Mazzuocco Unable to Relinquish Control: Legal Abuse in the Family Court (Luke’s Place Support & Resource Centre for Women & Children, September 2017) at 34-36.
38 Bala, above n 5; Nonomura and others, above n 9, at 3; Douglas “Legal systems abuse”, above n 4, at 84; McLemore, above n 3, at 340; Ward, above n 36, at 430; Miller and Smolter, above n 2, at 637; Przekop, above n 5, at 1055; Kerry Orr, Nicola Sheeran and Heather Douglas “The psychological impact on mothers who have experienced domestic violence when navigating the court system: a scoping review” (2023) Psychiatry, Psychology and Law 1 at 18.
39 Vollans, above n 5, at 355; and Mazzuocco, above n 37, at 37-38.
40 Ward, above n 36, at 443; and Orser, Lenskinski and Shartz, above n 36, at 355.
41 Orser, Lenskinski and Shartz, above n 36, at 355.
42 Nelson and Lumby, above n 9, at 37; McLemore, above n 3, at 333; Ward, above n 36, at 432.
This is not intended to represent an exhaustive list, but rather highlight the common observable features of abusive litigation in New Zealand case law. Not all cases had every feature present (or identifiable from the facts) but all contained more than three of the common features set out above. Importantly, it cannot be known with certainty if a feature was not present as the full background and history of the case was often omitted.
This refers to the general characteristics of the proceedings, including the number of proceedings brought, the years embroiled in litigation, and the relationships and representation of the parties.
The context of abusive family law proceedings focused on the care of children necessitates a personal relationship between the parties. Most often, this is an intimate partner relationship. The abusive litigant may go beyond this and attack their former partner’s support network or advocates, but the control and abuse of the former partner is always central to the proceedings.43 In some cases, proceedings may also be brought against lawyers or advocates representing the victim or the child, or even the Family Court itself. 44
Abusive litigation may be exacerbated if the perpetrator is self-represented. It is currently unclear exactly how many abusive litigants engage lawyers, with Canadian reports suggesting most cases dealing in abusive litigation involve lawyers, but that self-represented litigants are significantly more likely to engage in abusive litigation.45 However, Heather Douglas has
43 Vollans, above n 5, at 5; Ward, above n 36, at 445; and Mazzuocco, above n 37, at 39-39.
44 FT v PK FC Auckland FAM-2004-004-2512, 23 June 2010 at [34]; and DFT v JDN [2023] NZCA 15 at [12] &
[16]
45 Bala, above n 5.
recently questioned whether lawyers actively filter these sorts of proceedings.46 Instead, it has been suggested that lawyers are actually incentivised to engage with these clients (and some even specialise in such practice) given the promise of significant amounts of work and therefore, profit.47 Thus, while the presence of lawyers could indicate a lower chance of abusive litigation, recent overseas commentary suggests this may no longer be a reliable indicator.
Typically, care of children is the central aspect of the litigation, which is why it is the focus of this dissertation and why some commentators have gone so far as to label abusive litigation “custody stalking”.48 However, this does not preclude the inclusion of supplementary issues, such as division of assets and relationship property, or even matters beyond the family sphere, such as defamation or criminal charges.49 As abusive litigation is concerned with abusing or maintaining control over the other party, perpetrators will often look for anything to litigate; care of children is often just the most accessible and effective.50
The typical scenario in abusive litigation cases involves many proceedings brought over several years.51 There may only be one or two issues that need litigating, for example, a parenting order, but due to continuous calls for modifications, alleged changing circumstances and litigious strategies aimed at prolonging the proceedings, the parties may be litigating the same matters for decades. This was seen in Hirstich v Family Court at Manukau, where the proceedings lasted over 16 years, involved 26 lawyers and consisted of over 99 applications,
46 Heather Douglas “Family Violence, Lawyers and Debt” (2020) 33(3) AJFL 264.
47 Nelson and Lumby, above n 9, at 27 and 36; and Douglas “Family Violence, Lawyers and Debt”, above n 46.
48 Elizabeth, above n 10, at 186-187; Elizabeth, Gavey and Tolmie, above n 18.
49 Ward, above n 36, at 446; and Mazzuocco, above n 37, at 6.
50 See: Goundry, above n 2, at 35; and Sowter, above n 11, at 631.
51 Goundry, above n 2, at 42.
even though the subjects of the proceedings – the children – were well into their mid-twenties by this stage.52
Litigation does not need to reach this stage to be considered abusive. Unfortunately, this is a common outcome for cases dealing with abusive litigation with this review seeing parties involved in litigation for an average of 5.5 years. This is reinforced by a study conducted in Canada which saw that cases dealing with abusive litigation spent an average of 12 years being litigated.53
Abusive litigants employ strategic tactics as a means to delay and prolong litigation, thus maximising their control over the other party. These tactics may appear legitimate or coincidental making the behaviour difficult to identify.54 Examples of such tactics include changing lawyers,55 alleging a significant change in circumstance,56 filing proceedings on tangential or trivial matters,57 or waiting to file proceedings at particular times (i.e. before Christmas or a child’s birthday to prevent the other party from being able to buy the child presents).58 Other tactics might both prolong proceedings and cut the victim off from support, such as preventing the victim from accessing free legal services by the perpetrator visiting the
52 Hirstich v Family Court at Manukau [2014] NZCA 305 at [7].
53 Orser, Lenskinski and Shartz, above n 36, at 353.
54 National Domestic and Family Violence Bench Book (online ed, Australasian Institute of Judicial Administration) at [10.3.4].
55 Hirstich, above n 52, at [7]; FT v PK, above n 44, at [34]; Vollans, above n 5, at 27; and Douglas “Legal systems abuse”, above n 4, at 86-87.
56 FT v PK, above n 44, at [4]; Snell v Snell [2021] NZHC 953 at [3]; and R v R (2002) 22 FRNZ 568 (HC) at [6]. 57 Nelson and Lumby, above n 9, at 28; DFT v JDN, above n 44, at [10]-[12] and [16]; MC v KFO [2009] NZFC 260; [2010] NZFLR 289 (FC) at [2]; and S v T (2008) 27 FRNZ 31 (FC) at [36].
58 Vollans, above n 5, at 10 and 22; Przekop, above n 5, at 1070; and Douglas “Legal systems abuse”, above n 4,
at 86-87.
service first, meaning the service would be unable to help the victim due to a conflict of interest.59
Some commentators have also suggested that abusive litigants can be deliberately deceiving in their conduct, often appearing as charming and kind family men or even flipping the narrative by alleging the other party is the abusive one.60 These coercive and controlling tactics can help give the abusive litigant the upper hand in litigation and often coerce the other party into compromising in hopes of ending the litigation.61 This can be especially harmful in situations where the tactic is employed act as a protective measure. For example, abusive litigants may force the other party to bring the proceedings themselves – such as by failing to comply with a parenting order or withholding child support – knowing that civil restraint orders can only be ordered against a person who has consistently filed unmeritorious proceedings, as may have been seen in Khatri v Tomar.62
Abusive litigation often arises when the original relationship was marked by family violence.63 This may be implied from the general focus of the proceedings,64 evidence used in the proceedings (e.g. inappropriate sexual behaviour towards the child in Genovese v Collins and
59 Vollans, above n 5, at 11.
60 McLemore, above n 3, at 367; Ellen Reeves “Family Violence, protection orders and systems abuse: views of legal practioners” (2019) 32 Curr Issues Crim Justice 91 at 94.
61 Gutowski and Goodman, above n 5, at 535; and Vollans, above n 5, at 5 and 11; Elizabeth, Gavey and Tolmie, above n 18, at 247.
62 Khatri v Tomar [2021] NZHC 3091 at [29]- [32]. It is unclear from the facts given whether the father knowingly engaged in such protective measures.
63 Goundry, above n 2, at 1.
64 Foley v Garrett [2020] NZFC 4713 at [3] and [13]. This case concerned an application to amend a parenting order which contained a specific order preventing either party from raising their voice in the presence of the children following allegations of verbal assault.
LAC v PJB),65 or prior convictions of family violence or neglect.66 This is a particularly prevalent and telling sign of abusive litigation as separation seldom breaks the pattern of abuse and instead sees abusers adopting different methods of exacting harm.67 In fact, many commentators exclusively recognise abusive litigation as a continuation of family violence.68
Another hallmark of abusive litigation is the proceedings being marked by acrimonious, shaming and hostile conduct and tone. This can involve fabricating evidence, making false allegations, and bringing up unnecessary and harmful details known about the other party often to humiliate or embarrass them.69 For example, in Short v Short, the father made continuous references to the mother’s history, including abuse the mother had suffered by others, and general denigrating comments about the mother, such as labelling part of his evidence “things [the mother] wants to blame and punish me for”.70
Similarly, FT v PK saw the father wrongly accusing the mother of methamphetamine use to gain access to his child, a claim he kept advancing even after it had been proven false.71 This was something seen in other cases, where parties would advance an incriminating claim about the other party and would continue to advance it, even after it had been disproven by professionals. In FT v PK the allegation involved drug use, but in M v S and AB v CD it involved
65 Genovese v Collins [2021] NZFC 9943 at [33]; LAC v PJB [2012] NZFC 6838 at [2], [4] & [7]-[14].
66 R v R, above n 56; Brown v Sinclair [2016] NZHC 3196; KM v TVL [2014] NZCA 218; Lowe v Auckland Family Court [2017] NZHC 758; and Re Hanover [2015] NZHC 1855, (2015) 30 FRNZ 582 at [11], citing the earlier judgment involving the same parties: H v H (No 1) HC Auckland CIV-2007-404-7415, 15 September 2009. 67 Nonomura and others, above n 9, at 3; and Elizabeth, above n 10, at 188.
68 See: Douglas “Legal systems abuse”, above n 4, at 84-85; Goundry, above n 2, at 37; Toy-Cronin, above n 4, at 68; and Ashley Beeman “The Need for More States to Adopt Specific Legislation Addressing Abusive Use of Litigation in Intimate Partner Violence” (2022) 20 Seattle J Soc Just 825 at 857-858
69 Goundry, above n 2, at 26.
70 Short v Short [2021] NZHC 1874 at [43].
71 FT v PK, above n 44, at [4].
the former partner’s alleged mental instability and emotional exhaustion, respectively.72 Almost identical conduct was identified in Canada as a means of pathologising the other party, either to frame them as “unstable” and “overly emotional” or to shift the focus of the proceedings away from the abusive litigant.73 This conduct can also be used to prolong proceedings; in these cases, other proceedings were delayed until these allegations could be refuted and set aside.
At times, perpetrators behaviour has been labelled by the court as “antagonistic”, “evasive” and “disingenuous”.74 While care of children proceedings often involve extra challenges, the behaviour in these cases goes beyond this by colouring the proceedings with an abusive undertone.
Abusive litigants may engage in wider “systems abuse”, expanding litigation beyond the courts to make complaints in any system that may be able to assist them in gaining control over a former partner.75 These complaints may be made to any institutional or professional body such as Oranga Tamariki, the Police, mental health services, immigration services, or even the victim’s place of employment.76
In AB v CD the abusive party was found to have complained about her ex-wife over 100 times to various bodies ranging from the Police, to IRD, to the SPCA.77 When asked about her
72 M v S [2000] NZFLR 968 at [14]; and AB v CD [2023] NZHC 610 at [18].
73 Goundry, above n 2, at 26 and 54.
74 R v R, above n 56, at [5]; and Re Hanover, above n 66, at [11] citing H v H.
75 Reeves, above n 60, at 92.
76 DFT v JDN, above n 44, at [16]; Ward, above n 36, at 446; Douglas and Fell, above n 20, at 832; and Lesley Laing No Way To Live: Women’s experiences of negotiating the family law system in the context of domestic violence (University of Sydney: Faculty of Education and Social Work, June 2010) at 28.
77 AB v CD, above n 72, at [18].
conduct, the party confirmed that she had intended to “relentlessly pursue” her ex-wife through complaints to various bodies.78 Likewise, in DFT v JDN one party complained to the NZLS about the lawyer for the child on three separate occasions alleging impropriety.79
At times, complaints to other bodies can be extremely effective as not all bodies have the same rigid duty to uphold the principles of natural justice. Both internationally and domestically, commentators have recorded cases where complaints made to the Police or child protective services have resulted in the victim’s arrest or removal of the child with no investigation because the abusive litigant manipulated the system.80
Given that the primary goal of an abusive litigant is often to maintain contact and continue to control their former partner, they seldom accept any decision as final. This is made easier by the nature of care of children litigation; while most proceedings have an element of finality to them, proceedings involving the care of children can often be legitimately extended for the duration of a child’s life.81
This unwillingness to accept finality may be clear from the number of applications and length of time spent in litigation. Additionally, parties may demonstrate a disregard for previous decisions and attempt to bring up points previously litigated, as was seen in AB v CD and Lobb v Lobb.82 Parties may also attempt to bring various ancillary claims to keep the proceedings
78 At [18].
79 DFT v JDN, above n 44, At [10]-[12].
80 Reeves, above n 60, at 94; Vollans, above n 5, at 6 and 9; Laing, above n 76, at 28; and Goundry, above n 2, at
18 and 27-28 (international commentary); Elizabeth, above n 10, at 192 and 197 (New Zealand commentary).
81 Beeman, above n 68, at 833; Campbell, above n 10, at 55; and Lisa Tucker “The [E]X Factor: Addressing Trauma from Post-Separation Domestic Violence as Judicial Terrorism” (2021) 99 Wash UL Rev 339 at 360.
81 Goundry, above n 2, at 41-42.
“alive” or to seek alternative options when the initial proceedings are not going their way. For example, in DFT v JDN one party “vigorously pursued her grievances” related to the proceedings by bringing accompanying judicial review proceedings, habeas corpus applications, private prosecutions and claims for damages.83 Similarly, in Bull v Bull the Judge found the history of litigation demonstrated a “relentless pattern of behaviour in filing proceedings simply to keep the issue boiling”.84
The crux of abusive litigation is that the abusive party has an ancillary purpose in bringing proceedings – often, to abuse and continue to control their former partner.85 This collateral purpose can sometimes be discerned from the facts. Occasionally, it may be obvious from the Judge’s assessment of the abusive litigants’ behaviour – as was the case in Bull v Bull – but more often it may be indirectly discerned.86
For one, when the abusive litigant succeeds in achieving their stated goal, such as time with their child, they act in a way that is inconsistent with such goal. For example, in Short v Short when the father finally gained access to his daughter – the subject of the proceedings – he spent a significant amount of time talking to her about the case.87 Similarly, in FT v PK the father consistently litigated for further contact with his child under the parenting order, all while failing to contact his child under the existing arrangements.88 This demonstrates that the primary purpose in bringing proceedings in these cases may not have been to have a
83 DFT v JDN, above n 44, at [16].
84 Bull v Bull [2012] NZFC 2961 at [34].
85 Przekop, above n 5, at 1062.
86 Bull v Bull, above n 84, at [28]-[29]. The Judge found that the father’s conduct in court (i.e. the bitterness and resentment in his submissions and presentation in court) was clearly indicative of an ulterior motive.
87 Short v Short, above n 70, at [99].
88 FT v PK, above n 44, at [8]-[9].
relationship with the child, but to harm the former partner through the court process and legal proceedings. Supporting research from the United States also indicates a high rate of voluntary custody petition dismissals, suggesting the purpose of litigation was not to organise care for the child, but to use the child as a tool for abuse and exerting control over the victim.89
Alternatively, parties may bring vague and unspecific claims which lack factual support and legal merit, indicating they do not have any real legal issue they wish to dispute, and that they simply want to cause difficulty for the other party.90 For example, in MC v KFO the father, alongside many other vexatious and meritless applications, attempted to seek enforcement of an order that did not exist.91 Further, in Tyson v Tyson, the Judge noted that many of the perpetrators complaints were “repetitious, frequently gratuitous and disconnected from the immediate issue”.92
III Abusive vs Vexatious Litigation
A recurring pattern evident in the case law is a focus on vexatious proceedings, and a tendency to label the perpetrators behaviour as vexatious. This is likely due to vexatious proceedings orders being one of the only ways to restrict an individual’s ability to bring proceedings in New Zealand (to be discussed further in Chapter Two), yet raises an important issue surrounding the distinction between abusive and vexatious litigation. Indeed, many of the discussed features of abusive litigation are also common features of vexatious litigation, for example, an unwillingness to accept the finality of proceedings and a widening circle of respondents.
89 Przekop, above n 5, at 1062. This also appears to be seen in MC v KFO, above n 57, at [5].
90 Ward, above n 36, at 432.
91 MC v KFO, above n 57, at [10]. The father in this case was attempting to seek court enforcement of a prior agreement between the parties under the guise that it was a court order.
92 Toy-Cronin, above n 4, at 66, citing Tyson v Tyson [2020] NZFC 2636 at [58]. A similar example can be seen in S v T, above n 57, at [36].
However, abusive and vexatious litigation have different focuses and therefore require differential treatment in law.
Vexatious litigation is a term used in conjunction with “frivolousness” and “abuse of process” to describe when litigation is believed to have been exhausted.93 “Vexatiousness” had its genesis in New Zealand law in 1965 through the introduction of s 88B to the Judicature Act 1908 and has since been included in several other pieces of legislation.94 In circumstances of vexatious litigation, it is deemed permissible to dismiss an application or restrict an individual’s access to the courts as there is nothing left to reasonably litigate.95 The exact scope of vexatious litigation is uncertain; there is no legislative definition available, nor has one been routinely adopted by the courts.96 As such, it is unclear exactly what conduct will amount to “vexatiousness”. However, at its core, vexatious litigation is concerned with proceedings which are an abuse of process.
In contrast, abusive litigation is concerned with the use of litigation as a means to continue to control and abuse the other party.97 While using the courts as a vehicle for abuse would naturally be an abuse of process (and may therefore amount to vexatious litigation), abusive litigation goes beyond circumstances in which there is nothing left to litigate. In these cases, the focus of the inquiry should not be on the proceedings themselves, but the effect of the
93 Toy-Cronin, above n 4, at 73.
94 Michael Taggart “Vexing the Establishment: Jack Wiseman of Murray’s Bay” [2007] NZ L Rev 271 at 321. The Senior Courts Act 2016 replaced the Judicature Act 1908 and introduced new provisions surrounding civil restraints that do not consider vexatiousness. Nevertheless, “vexatiousness” is still referred to in case law and contained in the Family Acts and District Court Rules, High Court Rules and Family Court Rules. As such, it is important to consider its relationship with abusive litigation.
95 Toy-Cronin, above n 4, at 73.
96 Constance Rose Mailer “The Other Side: Vexatious Litigants in New Zealand” (LLB(Hons) Dissertation, Victoria University of Wellington, 2016) at 29. This piece was written before the enactment of the Senior Courts Act 2016 but is still applicable in the context of the civil restraint provisions concerning vexatious proceedings contained in the Family Acts and the District Court Rules, High Court Rules, and Family Court Rules.
97 Nonomura and others, above n 9, at 3.
proceedings on the other party. While one is concerned with procedural abuse, the other is focused on personal abuse. As these are two distinct things, there is a difference in the focus of the protection – the former is concerned with protecting the court, the latter with protecting the victim of the abuse. Both can involve constraining the offending litigant, but may involve different concerns and considerations.
Nevertheless, there is significant overlap between the two and until very recently in New Zealand, abusive litigation was almost exclusively labelled as vexatious (when it was recognised). This is understandable as abusive litigation has only recently emerged as a concept, unlike vexatious litigation which has formally existed in New Zealand law since 1965.98 Thus, while it makes sense that abusive litigation has historically been framed in terms of vexatiousness – rather than abuse or violence – a different approach needs to be adopted moving forward, one that recognises the two as distinct legal characterisations. This is what is considered in Chapter Four, but first it is important to understand the current New Zealand approach in more detail.
98 Taggart, above n 94, at 321.
CHAPTER TWO: CURRENT APPROACH IN NEW ZEALAND
Currently, New Zealand law does not explicitly address abusive litigation and those wishing to find legal protections must look elsewhere. Most often this involves drawing on provisions aimed at abuse of process (i.e. provisions aimed at vexatious litigants and civil restraint) or other powers the courts may have. Through using insights gained in the case review, this chapter aims to assess how these protections operate, both on their own and as protectors against abusive litigation.
I Legislative Protections
The provisions commonly relied on to protect against abusive litigation can be loosely grouped into two categories:
These differ in the degree of protection offered and the extent to which they infringe upon the abusive litigant’s rights. As such, while stays, dismissals and strikeouts appear to be utilised more frequently, civil restraints are seldom used.
Case law also suggests that evidence of vexatious proceedings can result in costs being ordered against the abusive party.99 This may, at times, be prohibited by the presence of legal aid as costs can only be awarded to a legally aided party in “exceptional circumstances”.100 Nevertheless, this form of protection is significant in recognising and mitigating the financial impact abusive litigation has on victims.101 However, the justification and analysis behind costs
99 M v S, above n 72, at [1]; Khatri v Tomar, above n 62, at [60] and [63]; DFT v JDN, above n 44, at [113]-[114]; and RNE v CDMO [2012] NZFC 4477 at [47]- [57].
100 S v T, above n 57, at [55]; and Legal Services Act 2011, s 41.
101 For a discussion of this in case law see: S v T, above n 57, at [45]-[46].
orders is rarely articulated within the case law and as such, this section will only explain the operation of the two categories of protection identified above.
Most family law and civil procedure Acts contain provisions allowing proceedings to be stayed, dismissed or struck out if they are an abuse of the court process. The District Court Rules and High Court Rules provide that a proceeding may be struck out if it has no reasonably arguable cause of action, is likely to cause prejudice or delay, or is frivolous, vexatious or otherwise an abuse of the court process.102 Nearly identical provisions can be found in the Family Court Rules.103
In a similar vein, but with a narrower scope, the Family Acts provide that the court may dismiss proceedings if satisfied they are frivolous, vexatious or otherwise an abuse of court procedure.104 The Care of Children and Oranga Tamariki Acts also provide for an additional ground of dismissal when proceedings are contrary to the welfare and best interests of the child.105
Despite minor differences in drafting, all provisions are virtually identical and seek to operate in the same way, regardless of the Act they are located in. These offer a weak form of protection as they still require the victim to engage with any other proceedings brought. In that sense, they are not a protection for the parties, but protection for court process and efficiency. Nevertheless, staying, dismissing or striking out proceedings concerning the care of children still only occurs
102 District Court Rules 2014, r 15.1; and High Court Rules 2016, r 15.1.
103 Family Court Rules 2002, ss 193-194.
104 Family Proceedings Act 1980, s 163(1); Oranga Tamariki Act 1989, s 207(1); Child Support Act 1991, s 227(1); and Care of Children Act 2004, s 140.
105 Care of Children Act, s 140(a); and Oranga Tamariki Act, s 206B.
in “exceptional circumstances” where a child’s welfare “demands the parent’s right to litigate be limited or restrained”.106
Civil restraints offer more protection for victims of abusive litigation by restraining the offending party from commencing further proceedings in court. The Family Acts all contain provisions allowing the Family or District Court to grant an order preventing a litigant from bringing future proceedings against any specified person or of any specified kind without prior leave of the Court.107 These restraints build on the provisions concerning stays, dismissals and strikeouts and require the Court to be satisfied the litigant has persistently instituted proceedings that are vexatious, frivolous or an abuse of process under that particular Act (or any former Act).108
The Care of Children and Oranga Tamariki Acts offer further safeguards by implementing protections aimed at preventing litigants from bringing “substantially similar proceedings” within two years of the previous proceeding without prior leave of the Court.109 Here, “substantially similar proceedings” are those which see the same parties involved (parent and child) and are commenced under the same provision as a previous proceeding, or involve an order to vary or discharge a previous proceeding.110 For example, in Snell v Snell, the mother was required to seek leave from the Family Court before she could file an application to modify a parenting order, as the application was made within two years of the previous decision on the
106 Marshall v Soper (1992) 9 FRNZ 357 (FC) at 360-361. Despite the language referring to restraining a parent’s right to litigate, the focus of this judgment was on the decision to stay the proceedings. See also: IAJE v LF [2012] NZFC 5051 at [12].
107 Family Proceedings Act, s 163(2); Oranga Tamariki Act, s 207(2); Child Support Act, s 227(2); and Care of Children Act, s 141.
108 Family Proceedings Act, s 163(2); Oranga Tamariki Act, s 207(2); Child Support Act, s 227(2); and Care of Children Act, s 141.
109 Care of Children Act, s 139A; and Oranga Tamariki Act s 206A.
110 Care of Children Act, s 139A(3); and Oranga Tamariki Act s 206A(3).
parenting order.111 Leave will be granted if there is evidence of a material change in the circumstances of any party or child to the previous proceeding.112 The courts have inferred the presence of these provisions to indicate Parliament felt a need to guard against parties repeatedly filing unnecessary or unmeritorious applications regarding children.113 These provisions do not, however, prevent parties from bringing proceedings under different Acts or provisions.
In general civil procedure legislation, only the Senior Courts Act 2016 empowers the court to limit parties’ ability to commence and continue proceedings.114 Section 166 permits judges in the senior courts to grant a civil restraint order against an individual if they consider that the individual has commenced or continued two or more proceedings that are “totally without merit”. In deciding whether proceedings meet this threshold, the Court may take into account the nature of any proceedings involving the litigant but is not limited to those considerations.115 The orders granted can have a limited, extended or general effect and last for a period of three years, or longer (with a maximum of five years) if satisfied the longer period is justified by “exceptional circumstances”.116
II Common Law Protections
As abusive litigation has no explicit legislative protections, courts wanting to constrain abusive behaviour must draw on other legislative and judicial tools to provide protections for victims, as highlighted above. The risk is that by engaging in this provision-shopping, judges may extend provisions beyond the scope of their original intention.
111 Snell v Snell, above n 56, at [3].
112 Care of Children Act, s 139A(2); and Oranga Tamariki Act s 206A(2).
113 Border v Tokoroa [2014] NZFC 10947 at [26].
114 Senior Courts Act 2016, ss 166-169.
115 Section 167(4).
116 Sections 166(2)-(5) and 168.
One example of this can be seen through the use of case management. In Hirstich, the Judge determined that their inherent jurisdiction to regulate their own procedure enabled them to require all future proceedings commenced by the mother to be referred to them for assessment.117 On such referral, the Judge would ensure the proceedings would not engage the court’s stay or dismissal powers (i.e. by having no reasonable basis or by being frivolous, vexatious or otherwise an abuse of process) before they could be allowed to progress.118 This was later confirmed by the Court of Appeal who determined that this form of case management did not restrain the mother from accessing the courts or require her to seek leave, instead it simply rendered her future proceedings subject to early judicial oversight.119
This was also the approach taken in Tyson v Tyson, alongside an undertaking which prevented the father from making any reference to matters in the mother’s history.120 Notably, there appears to be a blurring line here between “case management” and civil restraint orders. Subjecting parties to early judicial oversight is similar to requiring parties seek leave before they can commence proceedings as both involve an assessment of whether the proceedings will engage the court’s stay or dismissal powers.
Another method adopted by the courts can be seen in Khatri v Tomar.121 In this case, the Judge declined to grant an order under s 166 of the Senior Courts Act, despite the parties having been engaged in litigation for five years, and the Judge recognising “over 55 groundless
117 Hirstich, above n 52, at [27]; and MJH v SKK Manukau FAM-2002-092-283, 28 August 2012 at [16]. MJH v SKK and Hirstich involve the same parties. MJH v SKK sees the Judge decide that the mother’s future proceedings would be subject to initial judicial oversight and Hirstich involves an appeal on the judicial review of this decision (which was initially dismissed).
118 MJH v SKK, above n 117, at [16].
119 Hirstich, above n 52, at [27].
120 Tyson v Tyson, above n 92, at [103] and [107], as cited in Toy-Cronin, above n 4, at 66.
121 Khatri v Tomar, above n 62.
applications” made by the father.122 This was due to conceptual issues perceiving the father’s applications as “the commencement or continuation of proceedings” given that his applications were interlocutory in nature, and therefore did not constitute “proceedings”.123 Nevertheless, the Judge prohibited the father from engaging in any litigation until he had paid his outstanding court fees to the mother. This may have provided the mother with some reprieve, but it does not stop the father from paying his outstanding fees, appealing this decision, or allow the mother the ability to truly move on from the proceedings, as all existing litigation remained pending.124
The aim of these judgments was to offer the victim reprieve from some of the abusive tactics used by the other party in any future proceedings; it did not necessarily always prevent the victim from having to engage in litigation, but there was an attempt to mitigate the extent to which the party would be exposed to harm.
III Issues
The overarching challenge with the current legislation is that it was not enacted to address abusive litigation.125 As it was not created with the context of abusive litigation in mind, there are several limitations with the available protections.
In the absence of an explicit provision, the District and Family Courts do not have any power in respect of proceedings yet to be commenced.126 This means that in certain situations there is
122 At [25].
123 At [29]-[32] and [55].
124 At [64].
125 The same issue was identified in the United States: Beeman, above n 68, at 839.
126 KM v TL [2016] NZHC 1327 at [54].
no available avenue to prohibit future abusive proceedings. Courts may stay or dismiss proceedings when they arise, but they cannot prevent litigants from simply bringing further proceedings.
This is significant as the majority of cases dealing in abusive litigation are dealt with in these courts – as opposed to the Senior Courts – as they often concern repeated applications, filings and amendments to orders rather than appeals. As such, unless a party’s situation falls within the ambit of an Act which grants the courts the power to restrict future proceedings, there is no protection available. Historically, this was an issue in the context of the Guardianship Act 1968, but since being replaced by the Care of Children Act, the primary area where this issue arises is under the Family Violence Act 2018.127 This was recognised in KM v TL where the Judge highlighted the “very real need” for provisions like those found in the Family Acts, which allow the court to restrain parties from continuing and commencing proceedings.128
This is a lacuna in the law. In these circumstances where an explicit power is not available, victims of abusive litigation have no real reprieve from the continuous proceedings brought against them. While the proceedings may be dismissed or otherwise managed, the victim may still live in fear of the next proceeding and the effect it will have on them which has the potential to dissuade people from engaging with the legal system all together.129
127 M v S, above n 72; KM v TL, above n 126; D v H (2000) 14 PRNZ 41 (HC); and G v L [2007] NZFC 105; (2007) 26 FRNZ 418 (FC).
128 KM v TL, above n 126, at [64].
129 Ward, above n 36, at 449.
Three key factors contribute to the inaccessibility of the current approach for victims: the absence of a widely recognised term for abusive litigation, the complexity of the law, and poor communication between institutions.
Abusive litigation – or legal systems abuse, paper abuse, procedural stalking, or legal bullying
Further, the protections that are available are complex to navigate. For example, some provisions require explicit pleading by the applicants, leading to individuals being turned away if they plead the wrong thing, or make the application under the wrong Act.132 This was seen in MJH v SKK and in KM v TVL where the applications were unsuccessful, but the parties were encouraged by the court to try again, this time while following correct procedure.133 This is exceedingly difficult terrain to navigate, especially for those who are self-represented, and can also lead to increased procedural costs if the case needs to be pleaded again.
Finally, there is a lack of communication and coordination between courts and other bodies. The judge may only be aware of the proceeding before them, not the entire history of the
130 Ward, above n 36, at 432.
131 At 432.
132 Hirstich, above n 52, at [3]; and KM v TVL, above n 66, at [21].
litigation, particularly if other litigation was filed in a different court or concerned a different matter.134 In fact, when deciding whether to grant vexatious proceedings order, proceedings brought in other courts or tribunals have been deemed irrelevant to such decision.135 This may be due to the fact that courts are only permitted to consider whether there has been persistent vexatious proceedings under that particular Act (or any former Acts). Nevertheless, this means courts are often making a decision without having seen the entire picture. This acts as a significant barrier to recognising abusive litigation as separating the immediate proceedings from the history of litigation and the relationship leads to viewing them as decontextualised incidents and not as continuing evidence of abuse.136 It also has the potential to lead to forum shopping, in which abusive litigants choose to litigate in a court more favourable to them, for example, one that has not heard their case before.
Not only does the current approach fail to address abusive litigation, but as Douglas observes, making protections inaccessible can further facilitate abusive behaviour by hiding it beneath the complexity and inadequacy of the law, as well as across the entire court system.137 Ward suggests that this inaccessibility leaves victims feeling as though the other party’s behaviour is legally justified, causing them to become disillusioned by the legal system which is meant to help them.138
An additional issue with the current New Zealand framework is the narrow application of the vexatious proceedings and civil restraint provisions.139 This is due to the hesitance in restricting
134 Nelson and Lumby, above n 9, at 28.
135 Re Hanover, above n 66, at [132]. See also: RAW v R [2012] NZHC 1470 at [3].
136 Tolmie and Quince, above n 26, at 485.
137 Douglas “Legal systems abuse”, above n 4, at 95.
138 Ward, above n 36, at 432 and 448-449;
139D v H, above n 127, at [38]; and FT v PK, above n 44, at [64]-[65].
an individual’s access to the courts, a right enshrined in the New Zealand Bill of Rights Act 1990.140 Consequently, Judges look to apply these provisions only in “exceptional cases”, which sets a high threshold that is rarely met.141
This is made more difficult by the nature of the vexatious proceedings requirements. The labels of “vexatiousness”, “frivolousness” and “abuse of process” are vague and seldom defined, meaning they are inconsistently applied and their exact scope is uncertain.142 As such, it is rare that a litigant is deemed to fall within one of these categories, let alone that they do so persistently enough to be restricted from commencing or continuing any proceedings.143 It follows that “vexatiousness” is a high enough threshold on its own, without taking into account that often such a label will not adequately capture abusive litigation as it is seldom the case that it will be “’vexatious’ or ‘frivolous’ of a father to seek to spend time with his children.”144
The same difficulty appears with the standard in the Senior Courts Act. The Senior Courts Act requires courts to assess whether proceedings are “totally without merit” when determining whether a civil restraint order should be granted.145 This replaced s 88B of the Judicature Act 1908 following the recognised limitations of the vexatious standard.146 For proceedings to be “totally without merit” they must be “bound to fail” and “hopeless” both at the qualitative and quantitative level.147 This is still a notably high threshold, and one that may be problematic in this context, as proceedings are unlikely to deemed “totally without merit” given the
140 New Zealand Bill of Rights Act 1990, s 27.
141D v H, above n 127, at [38]; Hirstich, above n 52, at [28]; and KM v TL, above n 126, at [55].
142 Mailer, above n 96, at 7.
143 Toy-Cronin, above n 4, at 72.
144 Nelson and Lumby, above n 9, at 35.
145 Senior Courts Act, s 167.
146 Mailer, above n 96, at 36-37.
147 Mawhinney v Auckland Council [2021] NZCA 144 at [56]- [60].
consideration of the best interests of the child as, again, it is unlikely to be in the best interests of a child to bar a parent from attempting to have a relationship with them.148
Finally, by not having its own explicit regime, attempts to restrain abusive litigation mean forcing it into various provisions in such a way that makes it lose its distinct legal character. In framing the issue as one of an abuse of process – whether that be vexatiousness, frivolousness or unmeritorious proceedings – abusive litigation becomes something it is not, and the focus turns to procedural considerations, which minimises the effect the conduct has on the victim.
Further, this leads to a lack of focus on the effect of continuous litigation on the victim. Courts will look to consider the effect of such litigation on children when required by legislation (i.e. the Care of Children or Oranga Tamariki Acts) but not the other party.149 When courts do consider the impact on victims, it is not often deemed significant in determining whether an order should be granted; the focus is, as always, on the offending litigant and their conduct in the context of court procedure.150
M v S offers an example of this framing issue in practice. The Judge in the initial Family Court decision recognised the coercive control the father was attempting to exercise over the mother and granted an order prohibiting him from commencing any further proceedings for two years:151
148 Fitch and Easteal, above n 18, at 109-110.
149 Care of Children Act, s 140. See the following cases for examples of this in practice: D v H, above n 127; G v L, above n 127; T v M (1988) 3 FRNZ 681; and P v M FC Auckland FAM-2002-004-2110.
150 See: KM v TVL, above n 66, at [19].
151 M v S, above n 72, at [14] citing the Family Court in the same proceeding. There is no citation given for the Family Court Judgment in the decision.
A close examination of the father’s affidavits...reveal by their tone and references a degree of power and control which the father wishes to assert over the mother...the complete absence of any significant conciliatory approach on [the father’s] part gives weight, in my view, to the mother’s concerns regarding the control the father continues to attempt to exert over her.
Here, the father’s conduct was framed from a coercive control perspective, rather than one concerned with procedural considerations or vexatiousness. Unfortunately, the conduct was not framed the same way in the High Court, where the Judge deemed it “unreal” to suggest the appellant had engaged in vexatious litigation when only three applications had been filed.152 The High Court did not recognise the relevance of abuse and control, instead framing the issue as one of protecting court process and the litigant’s right to access the courts.
IV Summary on Abusive Litigation in New Zealand
New Zealand’s current approach to abusive litigation not only fails to adequately protect victims of abusive litigation, but at times risks becoming complicit by failing to address the abuse enacted by perpetrators. As a result, victims can be doubly victimised – first by the abusive litigation itself, and secondly by the court and legal systems which fail to adequately acknowledge and mitigate the behaviour.153 Abusive litigation is a unique and complex phenomenon that has its own distinct legal character which must be formally recognised if it is to be restricted. Without this, abusive litigation risks remaining misunderstood, unprotected, and may force victims to face continuous and seemingly justified abuse.
152 M v S, above n 72, at [43].
153 Goundry, above n 2, at 70.
CHAPTER THREE: COMPARABLE JURISDICTIONS
Increasing recognition of the issues posed by abusive litigation has prompted some overseas jurisdictions to make changes within their legal systems. Certain jurisdictions – including Australia, Tennessee and Washington – have introduced, or are in the process of introducing, specific legislative regimes for abusive litigation. Alternatively, other jurisdictions – such as British Columbia – have adopted expansive understandings of family violence that recognise abusive litigation as a form of such behaviour. This chapter explores how these regimes operate so as to illustrate how a targeted regime may be more effective in addressing abusive litigation.
All four jurisdictions discussed have virtually identical abuse of process legislation to that which exists in New Zealand. Despite this, they accepted the need for recognition of abusive litigation’s distinct legal character and acknowledged the concerns associated with treating such conduct as something else.154 Notably, all discussed jurisdictions appear to acknowledge the proliferation of abusive litigation in care of children proceedings, although do not limit the availability of the protections as such.
I Australia
Australia is in the process of enacting a comprehensive regime addressing abusive litigation with the Family Law Amendment Bill 2023 (‘the Australian Bill’). At the time of writing, the Australian Bill was before the Senate.
The catalyst for the introduction of an explicit abusive litigation regime was the case of Marsden & Winch. In this case, the court recognised that continuous litigation had caused the mother to develop Post-Traumatic Stress Disorder, but held they were unable to offer
154 McLemore, above n 3, at 360; and Family Law Amendment Bill 2023 (Explanatory Memorandum) at 320.
protection in the form of a vexatious proceedings order given the high threshold such an order necessitates.155 This case highlighted a gap in Australian law and the inadequacy of the vexatiousness standard in these circumstances due to its focus on the intention of the perpetrator and insufficient weight given to the effect of the litigation on the victim.156
Currently, any court with jurisdiction under the Family Law Act 1975 (Cth) can dismiss all or part of any proceedings if the court is satisfied the proceedings are frivolous, vexatious or an abuse of process, or if there is no reasonable prospect of success.157 The Family Law Act also allows for orders restricting access to the court without prior leave to be instituted if a court is satisfied that a litigant has frequently conducted vexatious proceedings in any Australian court or tribunal.158
This regime presents similar problems to New Zealand’s current approach in that it also uses the language of vexatiousness and abuse of process. However, it is wider in scope by being a “catch-all” provision that gives this power to all courts with jurisdiction under the Act. Further, it addresses the issue of forum shopping by requiring that any proceedings instituted in a court or tribunal are to be looked at.159
155 Marsden & Winch [2013] FamCAFC 117 at [157].
156 Australian Law Reform Commission Family Law for the Future – An Inquiry into the Family Law System
(ALRC Report 135, 2019) at [10.39] and [10.43].
157 Family Law Act 1975 (Cth), s 45A.
158 Section 102QB.
159 Family Law Act, s 102QB; and Family Violence Bench Book, above n 54, at [10.3.4].
A Family Law Amendment Bill 2023
The Australian Bill is the first legislative reform to emerge in response to the ALRC’s Inquiry into the Australian Family Law System.160 Included in the Australian Bill are enhanced powers for the courts in protecting against abusive litigation.
In response to the concerns raised in Marsden & Winch, the ALRC recommended the Family Law Act be amended to provide better protections against abusive litigation by expanding the overarching purpose of the Act and widening the courts summary dismissal and civil restraint powers.161 The Australian Parliament subsequently proposed to address both of these recommendations directly in the Australian Bill.162
Firstly, the Australian Bill proposes to amend the purpose of the Family Law Act to introduce harm minimisation as a key factor for consideration in family law practice and procedure.163 The Bill also seeks to include a statutory duty to conduct proceedings in a manner consistent with this purpose, with costs for those who fail to comply.164
The Australian Bill also proposes the introduction of harmful proceedings orders. Harmful proceedings orders would empower the court to restrict a litigants ability to institute proceedings without prior leave from the court if satisfied there are reasonable grounds to
160 Australian Law Reform Commission, above n 156; and Jacky Campbell “The Family Law Amendment Bill 2023 and other family law related bills” (24 April 2023) Wolters Kluwer <www.wolterskluwer.com>.
161 Australian Law Reform Commission, above n 156, at [1.52].
162 Family Law Amendment Bill 2023 (Cth) (Information Slides) at 6.
163 Family Law Amendment Bill 2023 (Cth), sch 5 cl 16; Australian Law Reform Commission, above n 156, at [1.52].
164 Family Law Amendment Bill, sch 5 cl 16.
believe that the other party or any children would suffer harm as a result of the proceedings.165 Guidance is given on potential meanings of harm – including psychological harm, major mental distress, or an effect on the party’s capacity to care for a child – but the definition is non- exhaustive to avoid narrowing the scope of what constitutes harm, which will depend on the individual circumstances of each case.166
In deciding whether the proceedings could cause harm, the courts may consider the history of the particular proceedings, as well as any other proceedings conducted in any Australian court or tribunal, and the cumulative effect of these proceedings.167 Again, these factors are non- exhaustive and the court can consider any other relevant factors.168 Further, in line with the principles of natural justice, the defendant must be granted the opportunity of being heard.169
If an order is granted, the restricted party must apply for leave (or a dismissal of the order) before instituting any further proceedings.170 Applications for leave are made ex parte – without serving documents on the respondent if and until leave is granted.171 Leave will be granted if the court is satisfied the proceedings have a reasonable chance of success and are not frivolous, vexatious or an abuse of process.172 Any contravention of an order will result in the proceedings being stayed and may result in adverse orders against the offending party.173
165 Family Law Amendment Bill, sch 5 cl 6; Australian Law Reform Commission, above n 156, at [1.52], [10.44]
and [10.57].
166 Family Law Amendment Bill 2023 (Explanatory Memorandum) at 327.
167 Family Law Amendment Bill, sch 5 cl 6.
168 Family Law Amendment Bill (Explanatory Memorandum) at 328.
169 Family Law Amendment Bill, sch 5 cl 6.
170 Schedule 5, cl 6.
171 Family Law Amendment Bill (Explanatory Memorandum) at 341.
172 Family Law Amendment Bill, sch 5 cl 6.
173 Schedule 5, cl 6.
As the Bill has not yet been enacted, these provisions may change and remain untested in their current form, meaning it is not yet possible to analyse the effectiveness of this regime. Nevertheless, submissions have been largely supportive of the protections aimed at addressing abusive litigation.174 Most recommendations so far relate to potential additional protections and minor details in the wording of the provisions, for example, the lack of an explicit requirement for the courts to consider the presence of other forms of systems abuse.175 Additionally, some submissions have called for further protections through more procedural and formal manners, such as specialised judicial training, measures to ensure procedural fairness and safety during litigation, and explicit recognition of abusive litigation as a form of family violence and coercive control.176
II United States: Washington & Tennessee
In 2018, Tennessee became the first jurisdiction to explicitly address abusive litigation in the family law context by enacting legislation.177 Similarly to Australia, the law change was sparked by a case that gained public attention, where a mother was continuously harassed
174 Heather Douglas “Submission to Attorney-General’s Department on Family Law Amendment Bill 2023” at 5; Camilla Nelson and others “Submission to the Attorney General on the draft Family Law Amendment Bill 2023” at 9; Australian Research Alliance for Children and Youth “Submission on Family Law Amendment Bill 2023” at 2; Australia’s National Research Organisation for Women’s Safety “Submission Re: Exposure draft of the Family Law Amendment Bill 2023” at 7; Full Stop Australia “Submission to Senate Legal and Constitutional Affairs Committee on the Family Law Amendment Bill 2023” at 14; Australian Institute of Family Studies “Submission in Response to the Consultation Paper: Exposure Draft – Family Law Amendment Bill 2023” at 10; Family Law Council “Response to Consultation Paper: Family Law Amendment Bill 2023” at 24; and National Women’s Safety Alliance “Submission on the Family Law Amendment Bill 2023” at 8.
175 Douglas “Submission to Attorney-General’s Department”, above n 174, at 5; Full Stop Australia, above n 174, at 14; Australian Institute of Family Studies, above n 174, at 10 & 12; and Family Law Council, above n 174, at 24.
176 Full Stop Australia, above n 174, at 16-25; Women’s Legal Services Australia, above n 174, at 22; Australian Institute of Family Studies, above n 174, at 12 (advocating for procedural protections); and Mark Barker “Government’s family law bill is a big step forward. But it doesn’t do enough to address family violence.” (18 May 2023) The Conversation <www.theconversation.com>; Australia’s National Research Organisation for Women’s Safety, above n 184, at 7; Douglas “Submission to Attorney-General’s Department”, above n 174, at 6; Patricia Easteal “Submission on Exposure Draft, Family Law Amendment Bill 2023” at 13 (advocating for the recognition of abusive litigation as a form of family violence and/or coercive control).
177 McLemore, above n 3, at 333.
through the courts by her former partner seeking information about their shared child, despite the father being in prison after numerous attempts on her life.178 Following the enactment of Tennessee’s law, Washington followed by introducing very similar legislation.
The respective laws are contained in the Revised Code of Washington and the Tennessee Code.179 Washington also has further judicial guidance in the “Abusive Litigation and Domestic Violence Survivors” Appendix in the Domestic Violence Manual for Judges.180 Though the laws vary in scope, they are structurally identical and materially offer the same protections through the law.181 Given the significant overlap, these laws will be discussed simultaneously with the differences outlined below.
Both the Tennessee and the Washington Codes provide that a party to litigation may raise a claim of abusive litigation if they have a particular relationship with the other party.182 This will result in a hearing to determine the merits of such allegation.183 The court may also call for a hearing on its own motion and the alleged abusive litigant must be granted the right to be heard.184
To determine whether abusive litigation exists, the court must establish that the litigation was conducted for a specific purpose.185 In deciding whether litigation meets this standard, certain
178 At 348.
179 Wash Rev Code Ann § 26.51; and Tenn Code Ann § 29.41.
180 Domestic Violence Manual for Judges: Appendix H - Abusive Litigation and Domestic Violence Survivors
(Washington State Administrative Office of the Courts, 2016).
181 In Tennessee, abusive litigation is called an “abusive civil action” and the parties to the proceedings “civil action applicants / defendants”. Here, “abusive litigation” will be used to describe the law in both states.
182 Tenn Code Ann § 29.41.101; and 29.41.103; and Wash Rev Code Ann § 26.51.030
183 Tenn Code Ann § 29.41.101; and 29.41.104; and Wash Rev Code Ann § 26.51.040.
184 Tenn Code Ann § 29.41.101; and 29.41.103(b); and Wash Rev Code Ann § 26.51.030(2).
185 Tenn Code Ann § 29.41.101; and Wash Rev Code Ann § 26.51.020(1)(a)-(b).
evidence will create a rebuttable presumption that the litigation is for one of the stated purposes.186 Such evidence includes litigating the same or similar previously decided issues and previous evidence of abusive or vexatious litigation.187 Finally, the claimant must also demonstrate the litigation is either without evidentiary support, contains issues that have previously been litigated, or is not warranted by law.188
If, by a preponderance of the evidence, abusive litigation is found, all litigation shall be dismissed and the court will issue an order restricting abusive litigation.189 Such order will require the abusive litigant to bear all costs associated with the litigation, including those costs incurred by the other party, and impose prefiling restrictions upon the abusive litigant for a period of four to six years.190
In Washington, the order will only restrict litigation against an identified protected party, not litigation at large.191 However, in Tennessee, all further proceedings the abusive litigant wishes to file will be subject to prefiling restrictions.192 In both jurisdictions, the restriction is also not absolute; following an order, the abusive litigant can seek permission to institute new proceedings, which may be granted if the court reasonably believes the proceedings will not amount to abusive litigation.193
An abusive litigant seeking permission to institute further proceedings must appear before the same judge who imposed the initial prefiling restrictions, unless that judge is no longer serving
186 Tenn Code Ann § 29.41.105; and Wash Rev Code Ann § 26.51.050.
187 Tenn Code Ann § 29.41.105; and Wash Rev Code Ann § 26.51.050.
188 Tenn Code Ann § 29.41.101(1); and Wash Rev Code Ann § 26.51.020(1)(a)-(b).
189 Tenn Code Ann § 29.41.106; and Wash Rev Code Ann § 26.51.060.
190 Tenn Code Ann § 29.41.106; and Wash Rev Code Ann § 26.51.060(2). Prefiling restrictions operate the same as requiring a party seek leave before instituting any further proceedings.
191 Wash Rev Code Ann § 26.51.060(2)(c).
192 Tenn Code Ann § 29.41.106(3).
193 Tenn Code Ann § 29.41.107; Wash Rev Code Ann § 26.51.070.
in the same capacity or district.194 This is particularly significant as it addresses the issues that arise regarding the lack of communication between courts and ensures the judge is familiar with the case and background to the relationship.195
While both laws recognise the unique nature of abusive litigation within the family sphere, they differ in the scope of victims they offer protection for and conduct they offer protection against. These differences are discussed below.
Washington’s law requires the parties have a current or former intimate partner relationship during which the party initiating or continuing the litigation has been found by a court to have committed domestic violence against the other party.196 This was deliberate, to emphasise that abusive litigation is a continuation of family violence.197 Conversely, the Tennessee Code simply requires the litigation be filed by a plaintiff against a defendant with whom they share a “civil action party relationship”.198 While this is the same class of people Tennessee law defines as potential victims of domestic abuse who may seek a protection order, there is no requirement that the party engaging in abusive litigation have previously been found to have committed domestic violence against the other party.199
194 Tenn Code Ann § 29.41.107; and Wash Rev Code Ann § 26.51.070(3)(a) and (7).
195 McLemore, above n 3, at 364.
196 Wash Rev Code Ann § 26.51.020(1)(a). A finding of domestic violence must be pursuant to a civil protection order, domestic violence order, restrictive parenting plan, or a restraining order provided such order was entered into on the basis of a court finding of domestic violence.
197 Beeman, above n 68, at 851.
198 Tenn Code Ann § 29.41.101 and 29.41.102. As per § 29.41.101(5) a “civil action party relationship” means the parties relationship fall within one of the following categories: adults who are current or former spouses, adults who live or have lived together, adults who have dated or had a sexual relationship, adults related by blood or adoption, adults related or formerly related by marriage, or a specified relationship with an adult child of a person. 199 McLemore, above n 3, at 351.
Washington’s law applies to a narrower class of people and may pose challenges where a party has been unable to secure a court finding of domestic violence.200 However, it does extend to instances where the party has continued or advanced litigation, recognising that abusive litigation can occur even if the abusive litigant is not the one filing proceedings.
Conversely, Tennessee law proposes a wider scope and acknowledges the potential for abusive litigation in different relationships, yet is limited to litigation filed by the abusive litigant and does not account for the continuation of proceedings.201 This has the potential to limit the utility and accessibility of this protection, as research from the United States shows that abusive litigants frequently fail to comply with court orders and engage in behaviour that forces victims to return to court and file proceedings themselves to seek enforcement.202 As such, it is possible this protection could be circumvented or, at the very least, avoided through the use of specific tactics employed by the abusive litigant.203
Both Codes require the purpose of the litigation be assessed, albeit to different standards. Tennessee requires the purpose be to “harass or maliciously injure”, a standard which will be met if the litigation was primarily designed to do any one of seven different specifically-stated abusive tactics.204 These stated abuse tactics recognise behaviour such as intending to deplete the victims financial resources, interfere with their ability to raise a child or maintain an independent livelihood.205 The tactics appear wide enough to allow judges to discern the
200 Przekop, above n 5, at 1074.
201 Tenn Code Ann § 29.41.101 and 29.41.102.
202 Ward, above n 36, at 442; and Beeman, above n 68, at 856.
203 Beeman, above n 68, at 857.
204 Tenn Code Ann § 29.41.101 and 29.41.101(6); and McLemore, above n 3, at 352.
205 Tenn Code Ann § 29.41.101(6). The other stated abusive tactics are engaging (or attempting to engage) in the following behaviour: forcing or coercing the defendant into making concessions, forcing or coercing the defendant to engage (or refrain from engaging) in certain conduct, impairing the health or wellbeing of the defendant or any dependants, or impairing, diminishing or tarnishing the defendant’s reputation or alienating them.
plaintiff’s intention more generally, but specific enough to prevent the law from being unduly extended.206 Nevertheless, Ashley Beeman has raised concerns about the use of an exhaustive list in this way as it may narrow the availability of the protection.207
Washington uses a wider and less prescriptive definition, requiring the intention of the litigation be to harass, intimidate or maintain contact with the other party.208 This recognises a common feature of abusive litigation: maintaining contact with the other party. It has been suggested that Tennessee adopt a similar definition, or at the very least include a reference to maintaining contact in their definition of “harass or maliciously injure”.209
Following the enactment of the protections in Washington and Tennessee, other states have been encouraged to follow suit.210 The provisions appear to work well in practice and there has been specific praise regarding the legislation being targeted, victim-centric and easily accessible for litigants.211 Some suggestions for strengthening the protections relate to the narrow scope of Tennessee’s law, which applies only to those who file proceedings and imports an exhaustive list of recognised abusive tactics.212
III British Columbia
206 McLemore, above n 3, at 354.
207 Beeman, above n 68, at 856.
208 Wash Rev Code Ann § 26.51.020(1)(a)-(b).
209 McLemore, above n 3, at 365-366.
210 McLemore, above n 3; Beeman, above n 68; and Tucker, above n 81, at 369.
211 Beeman, above n 68, at 858; McLemore, above n 3, at 370; and Sheila Burke “New state law seeks to stop ‘stalking by way of the courts’” (26 June 2018) AP News <www.apnews.com>. No cases could be found which raised any issues with the operation of either Washington or Tennessee’s law.
212 Beeman, above n 68, at 856-858.
British Columbia, much like New Zealand, does not have explicit laws aimed at protecting against abusive litigation.213 However, unlike New Zealand, there is wider awareness of abusive litigation which has seen the courts recognise such behaviour as constituting family violence, despite no explicit reference included in any legislation.214
Abusive litigation was first recognised as family violence in M.W.B v A.R.B. In this case, the Supreme Court found that the mother’s conduct during litigation, which caused the father to develop a serious medical condition and left him facing significant financial hardship, was a form of emotional abuse and harassment, in line with the definition of “family violence” contained in the Family Violence Act SBC 2011.215 There was no discussion of whether the definition provided in the Act would allow such an interpretation; the conduct was simply taken for what it was – abuse.
This decision set a precedent that “obstructive conduct and unnecessary litigation” can amount to family violence in certain situations.216 Following M.W.B, the courts became willing to recognise certain litigious conduct as amounting to family violence, including refusing to pay child support,217 intending to cause financial hardship,218 threatening to leave employment,219 and attempting to humiliate the other partner in court.220 However, the courts were more
213 Vollans, above n 5, at 7. British Columbia was chosen due to the unique approach taken by the judiciary in addressing abusive litigation. Canada, as a whole, is a leading jurisdiction in the literature on abusive litigation and makes up a substantial amount of the literature drawn on for this dissertation. Despite this, no provincial or federal laws in Canada explicitly address abusive litigation, and the literature itself tends to focus more on how abusive litigation presents and may be identified, as opposed to considering explicit legislative reform.
214 Sowter, above n 11, at 630; Tanya Thakur “Litigation Abuse as a Form of Family Violence” (16 November 2022) Coach My Case <www.coachmycase.ca>; and Family Law Act SBC 2011 c 25, s 1.
215 M.W.B. v A.R.B. 2013 BCSC 855 at [199], [201] and [208]; and Family Law Act SBC 2011 c 25, s 1.
216 C.R. v A.M. 2015 BCPC 76 at [10].
217 Hokhold v Gerbrandt 2014 BCSC 1875 at [132].
218 Hokhold v Gerbrandt, above n 217, at [132]-[134]; and C.R. v A.M., above n 216, at [57].
219 Hokhold v Gerbrandt, above n 217, at [134].
220 Barendregt v Grebulinas 2022 SCC 22 at [179] and [189].
hesitant to find abusive litigation in other situations. For example, the Supreme Court has indicated that continuous inflexibility, and confrontational and provocative behaviour will not alone amount to family violence.221 Importantly, in all cases, the entire relationship and history of abuse was considered alongside the presence of potential abusive litigation.
Most often, these findings of abusive litigation as family violence are considered in the context of parenting agreements being in the best interests of the child, and are used to justify making or modifying parenting orders.222 As such, the primary focus is not on protecting the victim from further abusive litigation, nor do the courts explicitly consider ways to achieve this. While strike out applications and vexatious litigation orders are available in British Columbia, they carry the same limitations as they do in New Zealand by virtue of being created without abusive litigation in mind.223 In recognition of these limitations, the courts appear willing to use a finding of abusive litigation as family violence as an alternative way to reprimand this conduct, even if that is not always the focus of the proceedings.224 In these cases, it is suggested that the courts may be able to use civil contempt orders to offer a form of protection.225
In M.W.B, the finding of family violence was not only used as grounds to vary the pre-existing parenting order, but also to justify a contempt of court order being granted.226 This power is open to the court if a party has wilfully disobeyed court orders and permits the court to impose
221 J.R.E. v 07 8 B.C. Ltd 2013 BCSC 2038 at [12].
222 Family Law Act SBC c 25, s 37. This section requires that a court must only consider the best interests of the child when making any agreement or order under this Part of the Act concerning the care of children. Included in considerations surrounding the “best interest of children” is the impact of any family violence on their safety, security or wellbeing.
223 Family Law Act SBC c 25, s 221 & s 223. See also: Supreme Court Act RSBC 1996 c 443, s 18.
224 See also: JP Boyd “Litigation Conduct May Constitute “Family Violence” Under the Family Law Act” (31 May 2013) Collaborative Divorce Vancouver <www.bcfamilylawresource.blogspot.com>.
225 M.W.B. v A.R.B., above n 215, at [285]; and Mazzuocco, above n 37, at 20-21.
226 M.W.B. v A.R.B., above n 215, at [275], [285]-[287] & [289]. Despite granting a civil contempt order in this case, Brown J deferred the decision on an appropriate penalty until a later date. No subsequent available decisions outlining this penalty were found.
a wide range of penalties, including imprisonment, a fine, or ordering security for future good behaviour.227 The Court in Hokhold v Gerbrandt elaborated on this, articulating that “the court will not entertain an application by a person who is in contempt of court until he has purged himself of that contempt”,228 nor would they hear any appeals from a person who uses the judicial process to overwhelm their former partner.229
This suggests an abusive litigant may be restrained, but only if they have disobeyed court orders whilst conducting litigation. Importantly, this order is not contingent on a finding of family violence, but has the potential to be significant as many commentators have noted that failure to obey court orders is a common feature of abusive litigation.230 Further, it directly prevents abusive litigants from achieving their goal of maintaining control over and contact with the other party.
Nevertheless, a finding of abusive litigation as family violence will not always empower the courts to restrict the abusive litigant. However, this may not be needed. Much of the literature from British Columbia (and wider Canada) focuses on how abusive litigation presents and encourages early identification by courts so it can be mitigated within the existing framework.231 Beyond this, calls for reform are most often aimed at judicial education and procedural measures to ensure safety for victims, with less emphasis on placing restrictions on the abusive litigant, as is seen in the other jurisdictions discussed.232 This may inform the approach taken by the courts in British Columbia; given the focus on judicial management,
227 Supreme Court Family Rules BC Reg 169/2009, r 21-7(1) and (3); and M.W.B. v A.R.B., above n 215, at [285] citing L.G. v R.G. 2012 BCSC 1365 at [281]- [286].
228 Hokhold v Gerbrandt, above n 218, at [10], citing Bettinson v Bettinson [1965] 1 All E.R. 102 at 105.
229 Hokhold v Gerbrandt, above n 218, at [13].
230 Orser, Lenskinski and Shartz, above n 36, at 355; McLemore, above n 3, at 365; Ward, above n 36, at 442; Out of the Frying Pan, above n 8, at 26; Bala, above n 5.
231 See, for example: Orser, Lenskinski and Shartz, above n 36, at 355; Gutowski and Goodman, above n 5, at 534; and Nonomura and others, above n 9, at 14.
232 See: Mazzuocco, above n 37, at 70-76; and Vollans, above n 5, at 28-29.
recognition of abusive litigation as family violence is significant in itself as it labels the perpetrators behaviour as abuse and prevents such abuse from hiding behind the legitimacy of the court and legal system.233
This approach is premised on the idea that identifying and labelling abusive litigation can ensure early judicial intervention which can change the environment that currently permits this behaviour.234 While some commentators still call for more explicit recognition of abusive litigation within the law, the judicial approach in British Columbia demonstrates an alternative focus that can be taken in addressing abusive litigation.235
233 See also the comprehensive guides for lawyers when their client is facing abusive litigation: Linda Neilson Responding to Domestic Violence in Family Law, Civil Protection and Child Protection Cases (online ed, CanLII) at [7.4]; and HELP Toolkit: Identifying and Responding to Family Violence for Family Law Legal Advisers (Department of Justice Canada, 2021) at 34-35.
234 Orser, Lenskinski and Shartz, above n 36, at 353.
235 Haley Hrymak and Kim Hawkins Why Can’t Everyone Just Get Along? How BC’s Family Law System Puts Survivors in Danger (Rise Women’s Legal Centre, January 2021) at 35-36; and Goundry, above n 2, at 76. Although Goundry is writing in 1998 her insights into abusive litigation in British Columbia remain relevant given the lack of significant legislative change in this area.
CHAPTER FOUR: MOVING FORWARD
This chapter assesses New Zealand’s options moving forward, considering the current proposed reform and the viability of New Zealand adopting similar regimes to those operating in the other jurisdictions discussed. In making recommendations for New Zealand’s best course of action, the inherent tension which exists in restricting individuals’ access to the courts is also considered.
I Current Proposed Reform
On 29 August 2023 the Victims of Family Violence (Strengthening Legal Protections) Legislation Bill (“the New Zealand Bill”) was introduced to Parliament. This Bill is part of a series of amendments to family and sexual violence law aimed at addressing the lack of protections currently available for abusive litigation. At the time of writing, the New Zealand Bill was before the Justice Committee and was open for submissions.
The New Zealand Bill looks to amend the Family Court Act 1980, District Court Act 2016, and the Senior Courts Act by providing an alternative way for judges to institute a civil restraint order.236 If passed, the New Zealand Bill will empower courts to restrain a party to a proceeding under a specified Act from commencing or continuing proceedings if satisfied the party has “exhibited conduct that is an abuse of the court and has given the party a reasonable opportunity to be heard”.237 An abuse of the court is defined to include “conduct that is intended to harass or annoy any other party to a proceeding”.238 When determining whether conduct meets this
236 Victims of Family Violence (Strengthening Legal Protections) Legislation Bill 2023 (285-1) (general policy statement) at 1.
237 Victims of Family Violence (Strengthening Legal Protections) Legislation Bill 2023 (285-1), cls 5, 11 and 15.
238 Clauses 5, 11 and 15.
threshold, a judge is required to consider all circumstances, including the party’s conduct during and outside the proceedings and any other matter they deem relevant.239
If satisfied a restriction should apply, the court can, at any time during the proceeding, order that the party must seek prior leave from a judge before they are able to do any (or all) of the following: 240
(a) take any further step in the proceeding;
(b) take any further step in a related proceeding under a specified Act where there is evidence of conduct that is an abuse of court;
(c) commence a new proceeding under a specified Act of any kind, or of any specified kind, or in respect of any specified person or matter, or take any further step in that proceeding.
Any order made will continue in force for three years unless the judge specifies a shorter period, or cites “extraordinary circumstances” that warrant a longer period not exceeding five years.241 Importantly, an order does not prevent the restricted party from lodging an appeal or filing a judicial review in respect of any proceedings, unless the order is made by a High Court Judge.242
This is a significant step forward in this area. For one, it gives effect to an understanding of coercive control by requiring that courts consider the entire context surrounding the proceedings. It also proposes to introduce a more overarching and accessible protection and extends the situations where civil restraint orders can be made beyond the realm of vexatiousness and unmeritorious proceedings. Still, concerns exist.
239 Clauses 5, 11 and 15.
240 Clauses 5, 11 and 15.
241 Clauses 5, 11 and 15.
The New Zealand Bill looks to target the court’s lack of inherent power to restrict an individual’s ability to commence or continue proceedings. In addressing this, the Bill is not proposing to give courts this power at large, but instead in relation to “specified Acts”.243 While this captures a significant amount of legislation care of children proceedings could be brought under, it does not capture all. For example, the Oranga Tamariki Act is not included as a “specified Act”.244 Therefore, in the absence of a more comprehensive list of specified Acts or an overarching power in respect of care of children proceedings, there is nothing stopping perpetrators bringing claims relating to the care of children under non-specified Acts.
Further, the protection is still phrased in terms of “abuse of the court”. While including conduct intended to harass or annoy a party may allow abusive litigation to be captured, it does not change the fact that the primary focus is still on court process. This phrasing fails to distinguish abusive and vexatious litigation or recognise abusive litigation’s distinct legal character. As outlined in Chapter Two, this is problematic as it frames the litigation not as abuse, but as procedural impropriety, in turn diminishing the harm felt by the victim.245 Beyond this, the language of “harass” and “annoy” may provide a lower threshold but is not framed in terms of
243 Victims of Family Violence (Strengthening Legal Protections) Legislation Bill, cls 5, 11 and 15. The specified Acts are the Status of Children Act 1969, Domestic Actions Act 1975, Property (Relationships) Act 1976, Family Proceedings Act, Child Support Act, Care of Children Act, and Family Violence Act.
244 See Adamson v Chief Executive of Oranga Tamariki [2022] NZCA 505; D v Chief Executive of Oranga Tamariki [2023] NZHC 2366; MC v Family Court at Manukau [2022] NZHC 870 and Chief Executive of Oranga Tamariki v JA [2021] NZFC 3068. On the facts given, these cases appear to involve abusive litigation type tactics by children’s family members against Oranga Tamariki. Abusive litigation against institutional and governmental bodies can still impact victims of abusive litigation by drawing them in as parties to the proceedings, especially in an effort to maintain contact with the victim. The presence of these cases indicates that it may be possible to conduct abusive litigation under this Act.
abuse or violence, further indicating an apparent hesitance in extending civil restraint proceedings beyond the realm of self-protective mechanisms for the courts.246
By not labelling abusive litigation as abusive litigation, it remains hidden and may prevent victims from accessing resources. Further, keeping the protections against abusive litigation within the realm of more general civil restraints may complicate the law; instead of victims being able to explain the effect the litigation has had on them, they will have to conceptualise it in terms of an abuse of the court.
Finally, the only protections being offered are civil restraints; there is no consideration of offering protection by other means, such as by considering how court procedure in these cases should operate. For example, the Australian Bill proposes the introduction of an overarching purpose of harm minimisation in family law proceedings and a statutory duty to enforce compliance.247 Similarly, Washington and Tennessee take a victim-centric approach to court procedure in abusive litigation cases by including a rebuttable presumption on presentation of certain evidence that shifts the burden of proof to the alleged abusive litigant early on.248 Unlike the New Zealand Bill, the legislation (and proposed legislation) in these jurisdictions acknowledges that the harm caused by abusive litigation can be mitigated beyond simply restricting abusive litigants ability to commence or continue future proceedings.
In short, the proposed amendments are an improvement, but a small one. Beyond including specific powers in more Acts and extending the meaning of an “abuse of the court”, the proposed reform does not purport to do much else. As the New Zealand Bill has only had its
246 This is also the apparent basis of the approach in British Columbia; see Chaper Three, pages 44-47.
247 Family Law Amendment Bill, sch 5 cl 6. See Chapter Three, pages 36.
first reading it may change before it is enacted. Indeed, during the first reading, most MPs supported the Bill but some raised the concern that more needs to be done regarding protecting victims in the Family Court.249 Notably, the language used by the MPs during the first reading was focused on abuse and the harm caused to victims of abusive litigation, though this is not reflected in the language used in the Bill.250 This may suggest that the Bill is not suitable for achieving Parliament’s intended goal. What is needed is a targeted regime that explicitly focuses on using the court to abuse a person and the effect this has on the victim, with language to that effect.
II Recognising Abusive Litigation as Family Violence
As demonstrated throughout this dissertation, abusive litigation is a form of family violence regardless of whether it is legally recognised as such. Consequently, in both New Zealand and Australia, commentators have called for abusive litigation to be recognised as a form of family violence in legislation as a means of offering protection against abusive litigation.251
As discussed, the courts in British Columbia have recognised abusive litigation as falling within the legislative definition of family violence.252 The part of the definition relied on in British Columbia sees family violence include:
psychological or emotional abuse of a family member, including
(i) intimidation, harassment, coercion or threats...
249 (29 August 2023) 770 NZPD (Victims of Family Violence (Strengthening Legal Protections) Legislation Bill
250 (29 August 2023) 770 NZPD (Victims of Family Violence (Strengthening Legal Protections) Legislation Bill
251 Kirsty Johnston “’The court can’t stop him’: How a woman’s abusive ex-husband filed 100 court claims against her, and counting” (21 August 2022) Stuff.co.nz <www.stuff.co.nz> (New Zealand commentary); Barker, above n 176; and Australia’s National Research Organisation for Women’s Safety, above n 174, at 7; Douglas “Submission to Attorney-General’s Department”, above n 174, at 6; Easteal, above n 176, at 13 (Australian commentary).
(ii) unreasonable restrictions on, or prevention of, a family member’s financial or personal autonomy...”253
Alternatively, the Family Violence Act (NZ) defines family violence to include all aforementioned aspects, as well as recognising coercive control as a form of family violence.254 As such, it appears open to the courts in New Zealand to recognise abusive litigation as a form of family violence without any law change. However, there has been no indication that the courts would be willing to do this meaning its explicit inclusion in the definition may be needed to encourage such interpretation.
Formally recognising abusive litigation as a form of family violence would be significant in raising awareness and providing an accessible label to the behaviour many experience in court. Yet without further changes to the law, it may be of limited use as a form of protection. Currently, a finding of family violence allows victims to seek a protection order. While protection orders can be moulded to suit the particular situation (i.e. by prohibiting a perpetrator from contacting the other party), there is nothing contained in the Family Violence Act (NZ) that empowers the court to use one to restrict an individual’s access to the courts.255
A synonymous example may be in NR v District Court at Auckland, where the Court of Appeal held that continuous litigation amounted to a pattern of harassment under the Harassment Act 1997.256 Despite this, the applicant could not rely on any protections contained in the Harassment Act as an “alternative means of controlling vexatious litigation” to bypass the
253 Family Law Act SBC c 25, s 1.
254 Family Violence Act, ss 9 & 11.
255 Family Violence Act, ss 79-113.
256 NR v District Court at Auckland [2016] NZCA 429 at [37]- [38].
existing legislative protections.257 A similar conclusion would likely be reached in this context. As such, additional amendments to the Family Violence Act (NZ) would be needed if this was to provide adequate protection against abusive litigation.
It follows that recognition of abusive litigation as family violence alone would not be the best next step; it may be useful for increasing awareness and identification of the issue (as appears to be the case in British Columbia), but would not offer sufficient protection on its own. If change is going to be made, new protections should be made from scratch, as opposed to attaching them to pre-existing protections that do not currently fit, lest we end up with another situation of abusive litigation being subsumed into a different area of law that does not effectively offer protection (albeit more fitting).
III Recommendations
To be effective, New Zealand’s protections against abusive litigation must be:
This would be best achieved by introducing legislation to this effect, similar to that enacted in Washington and Tennessee, and soon to be enacted in Australia. Additionally, supplementary judicial training and guidance should be used to aid courts in early detection of abusive litigation.
257 At [37]-[38].
The Bill should be amended to introduce, among other things, a specific legislative protection empowering the courts to restrict an individual’s ability to institute or continue proceedings when there is evidence of coercive and controlling behaviour that is causing, or is likely to cause, harm to any party to the proceeding (including children). Several factors must be considered here, including defining what amounts to abusive litigation, the scope of the law, and the operation of the protections and restrictions.
A legislative provision for abusive litigation should see perpetrators behaviour amount to abusive litigation if the proceedings are causing, or are likely to cause, harm and there is evidence of coercive and controlling behaviour. Requiring both evidence of harm and coercive control prevents the law capturing unintended proceedings as care of children litigation and court procedure can be harmful regardless of whether abuse is occurring.258 Importantly, the legislation should refrain from adopting an exhaustive definition of abusive litigation or adopting a rigid criteria of what will amount to abusive conduct, so as to avoid narrowing the availability of the protection.
This formulation would explicitly recognise abusive litigation in law and also facilitate a victim-centric approach by requiring the inquiry be focused on the effect of the conduct on the victim. This is opposed to focusing solely on the conduct or intention of the alleged abusive litigant (as the New Zealand Bill and law in Washington and Tennessee requires) as discerning
258 See: Law Council of Australia “Submission to Senate Legal and Constitutional Affairs Legislation Committee on Family Law Amendment Bill 2023” at 174.
intent can sometimes be difficult, as demonstrated in New Zealand case law where abusive litigants intention has at times been misunderstood and inappropriately labelled.259 Although the intention of an abuser is important to coercive control, it need not be the focus of the legislative protections to actively give effect to such understanding.260
With that being said, the formulation of abusive litigation should also require evidence of coercive control. To facilitate this, a list of behavioural criteria which is indicative of abusive litigation should be included in supplementary guidance.261 Such criteria should be drawn from the existing case law and research on abusive litigation – both from New Zealand and overseas jurisdictions – and may include behaviour such as:
Any supplementary guidance like this should not be exhaustive; abusive litigants often find creative ways to manipulate the system meaning guidance should look to be inclusive so as to capture any unique or diversifying abuse tactics.
259 See: Victims of Family Violence (Strengthening Legal Protections) Legislation Bill, cl 5; Tenn Code Ann § 29.41.101; and Wash Rev Code Ann § 26.51.020(1)(a)-(b) (focus on intent in instruments); and Orr, Sheeran and Douglas, above n 38, at 18; and Toy-Cronin, above n 4, at 70 (difficulty in discerning intention).
260 Walby and Towers, above n 18, at 11.
261 See also: Orser, Lenskinski and Shartz, above n 36,; and Gutowski and Goodman, above n 5.
Finally, abusive litigation must be understood within the context in which it occurs. Therefore, it is crucial that the entire background to the proceedings and history of the relationship is considered when determining whether abusive litigation exists.262 The current Bill proposes to give effect to this by requiring the courts to consider the perpetrator’s conduct during and outside of the proceedings and anything else they deem relevant.263
The legislation should offer the courts an overarching power in respect of all family law proceedings involving the care of children, as opposed to specific legislative protections contained in individual Acts. Further, the law must cover the initiation and continuation of proceedings, with proceedings given an expansive definition that includes interlocutory applications and other filings.264 This will prevent situations where the courts are not empowered to act, and ensure protections are easily accessible and identifiable for victims.
There should be a rebuttable presumption available in specified circumstances. In practice, this would see a rebuttable presumption imported that the proceedings are abusive litigation (i.e. proceedings involving coercive control that is causing, or is likely to cause, harm to another party) upon the presentation of certain types of evidence. The onus would then shift to the alleged abusive litigant to prove that the proceedings were not abusive litigation. Evidence that could give rise to such presumption should include proceedings where there is evidence of relitigating the same or substantially similar issues or a prior conviction of abusive or vexatious
262 Douglas “Legal systems abuse”, above n 4, at 85; and Nonomura and others, above n 9, at 3.
263 Victims of Family Violence (Strengthening Legal Protections) Legislation Bill, cl 5.
264 This is given effect to under the current Bill: Victims of Family Violence (Strengthening Legal Protections) Legislation Bill, cl 5.
litigation, like the law in Washington and Tennessee, as well as prior convictions of family violence.265
If abusive litigation is found, the abusive litigant should be restricted from initiating or continuing proceedings for a defined period without prior leave from the court. Leave to institute proceedings should be granted to a restricted abusive litigant if a court is satisfied that the proceedings would not amount to abusive litigation.
Like the civil restraint provisions contained in the Senior Courts Act, the nature of these restrictions should be at the discretion of the judges.266 For example, whether the abusive litigant is restrained from bringing proceedings against just their former partner or against anyone in general may depend on their conduct during litigation: have they primarily gone after the other party, or have they also attempted to sever their support system and attack other people throughout the proceedings? Importantly, the court should retain the discretion to limit litigation generally, as opposed to just under particular Acts, in order to prevent abusive litigants simply bringing further proceedings under different Acts.
(c) “One Family, One Judge”267
If an abusive litigant is seeking leave from the court to institute proceedings, they should have to appear before the judge who ordered the initial restriction, unless certain circumstances make this impossible. This would address the lack of communication between courts and ensure that the judge assessing the application for leave is familiar with the background of the case.
265 Tenn Code Ann § 29.41.101 and 29.41.105; and Wash Rev Code Ann § 26.51.050.
266 Senior Courts Act, ss 166-169.
267 Nonomura and others, above n 9, at 12.
While there may be concerns regarding the feasibility of adopting this type of model in practice, it is largely a matter of case management which the courts have already indicated they are willing and able to do.268 At the very least, there needs to be better practices and policies implemented to ensure streamlined communication between all judicial bodies to allow a better understanding and response to abusive litigation.269 Better communication may also have the added benefit of deterring this type of behaviour and preventing forum shopping.270
(d) Notice of Leave Applications
When an abusive litigant seeks leave to institute or continue proceedings, the other party should be served the leave application unless they choose to opt out, in which case leave applications will be made ex parte.271 This allows victims to be aware of leave applications and their outcomes if they so choose, giving them the opportunity to ensure appropriate safety measures are in place to manage any risks that could emerge following an unsuccessful application.272
If abusive litigation is found, reasonable costs incurred by the other party in directly responding to the abusive litigation should be awarded against the abusive litigant. Typically, costs do not follow care of children proceedings unless a party has behaved unreasonably or improperly, in which case the court may award costs, including increased or indemnity costs.273 It follows that
268 Ward, above n 36, at 459; MJH v SKK, above n 117, at [16]; Hirstich, above n 52, at [27]; and Tyson v Tyson,
above n 92, at [107], as cited in Toy-Cronin, above n 4, at 66.
269 Przekop, above n 5, at 1095; and Fitch and Easteal, above n 18, at 113.
270 Neilson, above n 37, at 24.
271 This was a suggested amendment for the Australian Bill made by the Women’s Legal Services Australia and supported by Heather Douglas: Women’s Legal Services Australia “Women’s Legal Services Australia response to the Exposure Draft Family Law Amendment Bill 2023” at 22; and Douglas “Submission to Attorney- General’s Department”, above n 174, at 6.
272 Women’s Legal Services Australia, above n 271, at 22.
273 R v S [2003] NZHC 1010; [2004] NZFLR 207 (HC) at [63]; and David Bullock and Tim Mullins The Law of Costs in New Zealand
(LexisNexis, Wellington, 2022) at 198.
awarding costs against the abusive litigant would not be a major departure from the current approach to costs concerning the care of children, and would also recognise the financial burden abusive litigation places on victims.
Legislative protections should be supplemented by increased judicial education and guidance surrounding abusive litigation and coercive control.274 This should not only extend to judges and court personnel, but also those employed in child protection, police, legal and any other related services.275
Current research from several jurisdictions, including New Zealand, suggests that legal professionals and court personnel have poor knowledge of family violence and coercive control tactics.276 It follows that, in order for any legislative protections to be effective, they must be supplemented by education. In achieving this, training should centre not only on identifying abusive litigation, but also on the operation and presentation of coercive control – something commonly misunderstood.277 This is crucial, as for courts to recognise abusive litigation they must first understand how power and control are operating within the wider context of the relationship.278 A greater understanding of coercive control will not only make recognition of abusive litigation easier, but will also better equip judges and legal professionals to ensure the legal system is being used “as a tool to improve safety rather than perpetuate abuse”.279
274 Przekop, above n 5, at 1094.
275 Reeves, above n 60, at 107.
276 Orr, Sheeran and Douglas, above n 38, at 19; Coy and others, above n 18, at 63; Ward, above n 36, at 462; Lyndal Khaw and others “”The System Had Choked Me Too”: Abused Mothers Perceptions of the Custody Determination Process That Resulted in Negative Custody Outcomes” (2021) 36 Journal of Interpersonal Violence 4310 at 4311; and Leanne Francis, Rachael Sharman and Prudence Millear “Addressing family violence post separation - Mothers and fathers experiences from Australia” (2019) 3 J Child Custody 211 at 223.
277 McLemore, above n 3, at 368; Coy and others, above n 18, at 63; and Nonomura and others, above n 9, at 4.
278 Nonomura and others, above n 9, at 11.
279 Douglas “Legal systems abuse”, above n 4, at 96.
This training should be facilitated and supplemented by judicial guidance from Te Kura Kaiwhakawā | Institute of Judicial Studies, and should involve updating Te Kura Kaiwhakawā’s unreleased bench book on Family Violence to include material on abusive litigation (if not already present).280 This material should include common abusive litigation tactics, the impact of abusive litigation on survivors, and the different tools available to the court in preventing and protecting against abusive litigation.281
IV Tensions: Access to Justice
In direct conflict with comprehensive protections against abusive litigation is an individual’s right to access the courts, as enshrined in s 27 of NZBORA.282 Given this right is of “fundamental constitutional importance” a high threshold must be met before any abusive litigation protections that seek to limit this right (i.e. the recommended civil restraint), can be deemed demonstrably justified under s 5 of NZBORA.283
The only existing justified limitations on this right are those set out for vexatious litigants and s 166 of the Senior Courts Act, both of which are aimed at protecting the court and not parties to a proceeding. The Attorney-General held that the Victims of Family Violence (Strengthening Legal Protections) Legislation Bill in its current form would also be a demonstrably justified
280 Carrie Leonetti “Secret court manuals shroud justice in secrecy” (6 April 2023) Newsroom
<www.newsroom.co.nz>. These bench books are not currently available to the public. It is added that, as advocated for by Leonetti, these bench books should be made publicly available.
281 Compare: Domestic Violence Manual for Judges: Appendix H - Abusive Litigation and Domestic Violence Survivors (Washington State Administrative Office of the Courts, 2016).
282 The Attorney-General distinguished between s 27(1) and s 27(2) in this inquiry, noting that s 27(2) would only be infringed if the order was made by a High Court which would prevent the restrained party seeking judicial review without leave. Conversely, orders made by the Family or District Court do not engage s 27(2) because the Bill expressly preserves the ability to apply for judicial review: Anna Bloomfield Victims of Family Violence (Strengthening Legal Protections) Legislation Bill - Consistency with the New Zealand Bill of Rights Act 1990 (10 August 2023) at 14.
283 Attorney-General v Siemer [2014] NZHC 859 [50]-[51].
limit on s 27 of NZBORA, yet the Bill is still addressing abuse of the court and is therefore not a major departure from the pre-existing restrictions.284 As such, it is unclear whether restrictions outside those concerned with abuse of the court, such as that which was recommended in the previous section, would also be demonstrably justified.
Importantly, the restriction recommended by this dissertation itself – a civil restraint requiring prior leave before commencing proceedings – is the same as what is proposed in the Bill. The difference lies in the recommendation it be applied more expansively (i.e. outside the realm of an abuse of the court) and give more discretion to the courts over the parameters of the restriction. This may raise issues as the Attorney-General noted that the Bill in its current form lowers the threshold for civil restraint orders “considerably”, suggesting any further expansion of the provision would not be permitted as it would be viewed as doing more than is necessary to achieve its purpose.285
Nevertheless, it is posited that it is demonstrably justifiable to restrict an individual’s access to the courts to protect victims from abuse and the court from being a vehicle of that abuse. Importantly, all existing restrictions on the right to access the courts are not absolute; individuals barred by a civil restraint order still have access to the courts, they just require prior leave from the court before any proceedings can be commenced.286 The same is being proposed here; the court would not be preventing access to justice, but limiting access in accordance with the litigants conduct and in consideration of those who have been affected.
284 Bloomfield, above n 282, at 2.
285 Bloomfield, above n 282, at 26; and R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 at [104] per Tipping J &
[217] per McGrath J. Hansen requires restrictions on an NZBORA right to meet this test – amongst others – in order to be deemed “demonstrably justified” in a free and democratic society.
286 Senior Courts Act, s 168(1).
This understanding is supported by overseas interpretations of civil restraints impingement on the right to access the courts. For example, in Australia the Parliamentary Joint Committee on Human Rights found that the proposed changes in the Australian Bill – which are substantially similar to what is being proposed in this dissertation – would constitute permissible limitations on human rights.287 Similarly, the United Kingdom does not view civil restraint orders as a breach of an individual’s right to access the courts “because they do not prohibit access – instead, they provide for access on restricted terms”.288 While the same is true of the current and newly proposed restrictions in New Zealand, they are still viewed as breaching the rights contained in s 27 of NZBORA.289 Importantly, s 27 does not protect unfettered access to the courts, just access more generally, meaning there is nothing preventing a similar interpretation from being adopted in New Zealand.290
V Summary
To address the gap in the law, explicit legislative protections against abusive litigation are needed. These protections should take the form of an overarching power afforded to the courts in care of children proceedings. Such a power should enable courts to restrict an individual’s ability to initiate or continue proceedings if they are satisfied the proceedings are causing, or are likely to cause, harm to the other party and/or any children involved and demonstrate evidence of coercive control.
287 Parliamentary Joint Committee on Human Rights, Report 5 of 2023 [2023] AUPJCHR 37 at 26-36. While Australian law protects and recognises different rights than New Zealand (for example, the right to protection of the family) this demonstrates that a restriction of this nature can be justified.
288 Mailer, above n 96, at 28.
289 Mailer, above n 96, at 28; and Bloomfield, above n 282, at 2.
290 See also: Hirstich, above n 52, at [27] discussed in Chapter Two, page 26. The Court of Appeal indicated here that case management (which appears to operate virtually identical to civil restraints) would not restrict an individual’s ability to access the courts.
This power should be supplemented with judicial training and guidance on recognising and identifying abusive litigation. Additional protections in the law should include a rebuttable presumption which shifts the burden of proof to the alleged perpetrator, imposing costs against abusive litigants, giving victims of abusive litigation the ability to opt out of leave applications, and a form of case management that sees any applications for leave made to the same judge who ordered the initial restriction.
These additional protections seek to give effect to the approach emphasised in British Columbia which focuses on changing the court and legal environment that enables abusive litigation by fostering a victim-centric system. Additionally, while protection could take the form of including abusive litigation in the definition of family violence, this alone is unlikely to offer sufficient protection. Formal recognition of abusive litigation as family violence could, however, aid any additional legislative provisions by increasing awareness and accessibility of protections for victims.
In New Zealand, there appears to be hesitancy in adopting an entirely new regime for abusive litigation. This reluctance may result in the enactment of protections against abusive litigation that fail to adequately capture the entire issue. New Zealand has the opportunity to learn from other jurisdictions that are more developed in this area and adopt an explicit and targeted regime for abusive litigation.
CONCLUSION
People view the legal system as an arbiter of justice, expecting they can rely on the law to protect their interests and, in certain situations, save them from harm. This is especially true in the context of family law proceedings involving the care of children, where litigation can quickly become hostile and may already be complicated by existing social and personal challenges. In these situations, those engaging with the legal system do not expect it to become a vehicle of incessant and seemingly justified abuse. Unfortunately, this is the reality some currently face.
This dissertation has illustrated how the current approach for addressing abusive litigation in the context of care of children is not only inadequate but enables such abuse to continue without reprimand. New Zealand’s current approach mislabels the behaviour, minimises its effect on victims, and legitimises it in the eyes of the law by subsuming it into a regime that will only restrict a litigant’s access to the courts when their behaviour harms court process. It follows that an explicit regime which addresses the shortcomings of the current approach and prioritises protection for victims is needed. The regimes adopted in Australia, Washington and Tennessee, and British Columbia demonstrate the viability of explicitly recognising and attempting to address this issue. As such, this dissertation has recommended New Zealand adopt targeted legislative protections, beyond that which is currently proposed. Such protections should empower the courts to restrict an individual’s ability to access the courts when engaging in coercive and controlling behaviour that is causing, or is likely to cause, harm to any involved parties, and ensure that court procedure in these cases is conducted in a victim-friendly way.
These protections should only be the beginning rather than the end. Consideration of the role of lawyers and the police in perpetuating abusive litigation is also required, as well as exploring
the existence of abusive litigation outside the family context.291 Change is needed; the court and legal systems can no longer be used as vehicles of abuse, and if comprehensive protection is not actively strived for, these systems risk becoming complicit in the harm inflicted upon victims.
291 For further information regarding the role of lawyers in abusive litigation see generally: Heather Douglas “Family Violence, Lawyers and Debt” (2020) 33(3) AJFL 264; and Camilla Nelson and Catherine Lumby “Litigation Abuse” in Broken: Children, Parents and Family Courts (La Trobe University Press, Carlton, 2021) 26.
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Vivienne Elizabeth, Nicola Gavey and Julia Tolmie “”...He’s Just Swapped His Fists for the System” The Governance of Gender Through Custody Law” (2012) 26(2) Gend Soc 239.
5 Parliamentary / Government Materials
(29 August 2023) 770 NZPD (Victims of Family Violence (Strengthening Legal Protections) Legislation Bill – First Reading).
Anna Bloomfield Victims of Family Violence (Strengthening Legal Protections) Legislation Bill - Consistency with the New Zealand Bill of Rights Act 1990 (10 August 2023).
Better Outcomes for Victims: Ministry of Justice FVSV Consultation Material (April/May 2023).
Victims of Family Violence (Strengthening Legal Protections) Legislation Bill 2023 (285-1) (general policy statement).
Australian Institute of Family Studies “Submission in Response to the Consultation Paper: Exposure Draft – Family Law Amendment Bill 2023”.
Australian Law Reform Commission Family Violence - A National Legal Response (8 October 2010).
Australian Law Reform Commission Family Law for the Future – An Inquiry into the Family Law System (ALRC Report 135, 2019).
Australia’s National Research Organisation for Women’s Safety “Submission Re: Exposure draft of the Family Law Amendment Bill 2023”.
Australian Research Alliance for Children and Youth “Submission on Family Law Amendment Bill 2023”.
Camilla Nelson and others “Submission to the Attorney General on the draft Family Law Amendment Bill 2023”.
Family Law Amendment Bill 2023 (Cth) (Consultation Paper). Family Law Amendment Bill 2023 (Cth) (Explanatory Note). Family Law Amendment Bill 2023 (Cth) (Information Slides).
Family Law Council “Response to Consultation Paper: Family Law Amendment Bill 2023”.
Full Stop Australia “Submission to Senate Legal and Constitutional Affairs Committee on the Family Law Amendment Bill 2023”.
Heather Douglas “Submission to Attorney-General’s Department on Family Law Amendment Bill 2023”.
Law Council of Australia “Submission to Attorney-General’s Department on Family Law Amendment Bill 2023”.
Law Council of Australia “Submission to Senate Legal and Constitutional Affairs Legislation Committee on Family Law Amendment Bill 2023”.
National Domestic and Family Violence Bench Book (online ed, Australasian Institute of Judicial Administration).
National Women’s Safety Alliance “Submission on the Family Law Amendment Bill 2023”. Parliamentary Joint Committee on Human Rights, Report 5 of 2023 [2023] AUPJCHR 37. Patricia Easteal “Submission on Exposure Draft, Family Law Amendment Bill 2023”.
Women’s Legal Services Australia “Women’s Legal Services Australia response to the Exposure Draft Family Law Amendment Bill 2023”.
Domestic Violence Manual for Judges: Appendix H - Abusive Litigation and Domestic Violence Survivors (Washington State Administrative Office of the Courts, 2016).
6 Papers and Reports
All Eyes on the Family Court (The Backbone Collective, April 2017).
Andrea Vollans Court-Related Abuse and Harassment (YWCA Vancouver, 2010).
Haley Hrymak and Kim Hawkins Why Can’t Everyone Just Get Along? How BC’s Family Law System Puts Survivors in Danger (Rise Women’s Legal Centre, January 2021).
Kate Mazzuocco Unable to Relinquish Control: Legal Abuse in the Family Court (Luke’s Place Support & Resource Centre for Women & Children, September 2017).
Lesley Laing No Way To Live: Women’s experiences of negotiating the family law system in the context of domestic violence (University of Sydney: Faculty of Education and Social Work, June 2010).
Out of the Frying Pan and into the Fire: Women’s Experiences of the New Zealand Family Court (The Backbone Collective, April 2017).
Sandra Goundry Final Report on Court-Related Harassment and Family Law “Justice”: A Review of the Literature & Analysis of Case Law (Vancouver Association of Women and the Law, March 1998).
Victim-Survivor Feedback on The Government’s National Strategy and Action Plans to Eliminate Family and Sexual Violence (The Backbone Collective, September 2021).
7 Seminars / Papers Presented at Conferences
Diana Bryant “Access to Justice: How much is too much? The Legal and Medical Issues Arising From Vexatious or Querulous People” (paper presented to Monash University Prato Conference, Italy, 30 June - 1 July 2006).
Linda Neilson “Enhancing Safety: When Domestic Violence Cases are in Multiple Legal Systems” (paper presented to Family, Children and Youth Section Department of Justice Canada, Ottawa, 2013).
Nicolas Bala “Exploring Litigation Abuse in Ontario: An Analysis of Costs Decisions” (paper presented to International Society of Family Law Conference, Antwerp, July 2023).
Peter Jaffe, Claire Crooks, and Nicholas Bala “Making appropriate parenting arrangements in family violence cases: applying the literature to identify promising practices” (paper presented to Family, Children and Youth Section Department of Justice Canada, Ottawa, 2006).
Yves-Marie Morissette “Querulous or Vexatious Litigants, A Disorder of a Modern Legal System?” (paper presented to Canadian Association of Counsel to Employers 10th Annual Conference, October 2013).
8 Commentary
Family Procedure – Costs and the Family Court (online ed, Thomson Reuters).
HELP Toolkit: Identifying and Responding to Family Violence for Family Law Legal Advisers
(Department of Justice Canada, 2021).
Linda Neilson Responding to Domestic Violence in Family Law, Civil Protection and Child Protection Cases (online ed, CanLII).
Mark Henaghan Procedure in Care of Children Cases (online ed, LexisNexis).
9 Dissertations
Constance Rose Mailer “The Other Side: Vexatious Litigants in New Zealand” (LLB(Hons) Dissertation, Victoria University of Wellington, 2016).
10 Internet Materials
Carrie Leonetti “Secret court manuals shroud justice in secrecy” (6 April 2023) Newsroom
Glenn McConnell “Kiri Allan promises law change to stop courts being used to abuse” (21 April 2023) Stuff.co.nz <www.stuff.co.nz>.
“Family Violence Statistics – International” Good Shepherd New Zealand
Jacky Campbell “The Family Law Amendment Bill 2023 and other family law related bills” (24 April 2023) Wolters Kluwer <www.wolterskluwer.com>.
JP Boyd “Litigation Conduct May Constitute “Family Violence” Under the Family Law Act” (31 May 2013) Collaborative Divorce Vancouver <www.bcfamilylawresource.blogspot.com>.
Kirsty Johnston “’The court can’t stop him’: How a woman’s abusive ex-husband filed 100 court claims against her, and counting” (21 August 2022) Stuff.co.nz <www.stuff.co.nz>.
Mark Barker “Government’s family law bill is a big step forward. But it doesn’t do enough to address family violence.” (18 May 2023) The Conversation <www.theconversation.com>.
“New Bill seeks to strengthen sex abuse victims’ rights within justice system” (21 April 2023) Radio New Zealand <www.rnz.co.nz>.
Sheila Burke “New state law seeks to stop ‘stalking by way of the courts’” (26 June 2018) AP News <www.apnews.com>.
Sophie Trigger “Court system delays continue to create backlogs” (12 July 2023) NZ Herald
Tanya Thakur “Litigation Abuse as a Form of Family Violence” (16 November 2022) Coach My Case <www.coachmycase.ca>.
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