Leave Under a Harmful Proceedings Order: Full Court Lets Five Appeal Grounds Through

In Vanetti [2026] FedCFamC1A 185, McClelland DCJ, Schonell and Curran JJ determined an application for leave to commence appeal proceedings by a litigant in person who is subject to a harmful proceedings order ([1], [3], [8]). The result: leave was granted to appeal the 21 August 2026 leave-refusal orders, limited to Grounds 1, 2, 4, 5 and 6; time to file was extended seven days; and the application was otherwise dismissed, including leave to appeal orders of 14 March 2025 and a non-existent order dated 25 March 2025 (Orders 1–3; [9], [22]–[23], [55]). The important point is that a harmful proceedings order is a gateway, not a brick wall. On the s 102QAG test, leave can still be granted where the proposed appeal is not frivolous, vexatious or an abuse of process and has reasonable prospects — even if the draft Notice of Appeal is prolix — where the arguable core is that the primary judge may have mischaracterised alleged contraventions of final orders as a re-agitation of parenting, and may have misapplied s 102QAE(3) ([36], [43]–[54]). All paragraph references below are to the judgment.

Why it matters: Harmful proceedings leave under Pt XIB is often refused. This decision shows when the Full Court will open the gate. The Court cut through a 25-page, likely AI-generated Notice of Appeal with 24 asserted errors to find an arguable core ([33], [36]). Procedural fairness is about process, not result, so on-the-papers determination under s 102QAF(4) was lawful ([40]–[41]). But a primary judge’s characterisation of an affidavit as “mostly complaints about decisions the orders expressly permit” can be plainly wrong where equal shared parental responsibility still covers matters such as religion, and sole responsibility for health and education is conditioned on consultation ([43]–[46]). That characterisation drove the vexatious/abuse finding ([45]). Separately, s 102QAE(3) requires disclosure of all relevant facts supporting or adverse, not a litigation-history catalogue as such ([47]–[51]).

🧩 Facts and Issues

The leave application

• Ms Vanetti (the applicant) is subject to a harmful proceedings order made on 14 March 2025 under s 102QAC(1). She therefore needs leave under s 102QAE to institute further proceedings, including an appeal ([1], [3]; Pencious & Searle; Fowles (No 2)).
• By Application in an Appeal filed on 10 September 2026, she sought leave to commence appeal proceedings. The proposed Notice of Appeal identified orders of 14 March 2025, 25 March 2025 and 21 August 2026 ([2]).
• The onus is on the applicant to show the proposed proceedings are not frivolous, vexatious or an abuse of process, and have reasonable prospects of success. Failure to discharge that onus means leave is refused (Darley (No 4) at [13]; [6]–[7]).
• The Full Court determined the application in chambers on the papers under Pt 5.3 and r 13.38 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), as permitted by s 102QAF(3)–(4) ([8]).

Background in brief

• The applicant and Mr Harrison (the father) have been in highly litigious parenting and property proceedings ([10]). Final parenting and property orders were made in July 2023 after a nine-day hearing. Among other things, the father has sole parental responsibility for the children’s health and education (after consultation, with a casting vote if no agreement), and the parents otherwise have equal shared parental responsibility; the children live with the father and spend defined time with the mother ([11]).
• An earlier appeal from those final orders was dismissed in October 2023 (Vanetti & Harrison [2023] FedCFamC1A 180) ([12]).
• On 28 August 2024 (amended 12 October 2024), the applicant sought reconsideration of the final parenting orders under s 65DAAA. The father sought dismissal and a harmful proceedings order ([13]–[14]). The parties agreed the matter would be determined on the papers ([15]).
• On 14 March 2025, the primary judge dismissed the s 65DAAA application (no significant change of circumstances; not in the children’s best interests to reopen) and made the harmful proceedings order (Vanetti & Harrison [2025] FedCFamC1F 162) ([16]). There was no contemporaneous appeal ([17]). No order was made on 25 March 2025 ([18]).
• On 18 August 2026, the applicant filed an Application in a Proceeding seeking leave under s 102QAE to institute further proceedings, supported by an affidavit sworn 5 August 2026 ([19]).
• On 21 August 2026, the primary judge refused that leave. His Honour found the proposed proceedings vexatious within s 102Q(1), and dismissed under s 102QAF on the basis that the supporting affidavit did not substantially comply with s 102QAE(3) and that the proceedings were an abuse of process and vexatious ([20]–[21]).

Issues

1. Should leave be granted to appeal the 14 March 2025 orders (and any 25 March 2025 order) ([22]–[23])?
2. Does the present leave affidavit substantially comply with s 102QAE(3) ([25]–[28])?
3. Are the proposed appeal grounds vexatious within s 102QAF(2) / s 102Q(1), or do they disclose an arguable case ([29]–[52])?
4. Is the s 102QAG gateway met so that leave may be granted ([53]–[54])?

⚖️ Applicable Law – Legislation, Regulations, Rules

• Pt XIB / ss 102Q, 102QAC, 102QAE, 102QAF, 102QAG of the Family Law Act 1975 (Cth): the harmful proceedings regime. After a s 102QAC order, leave is required to institute proceedings (including appeals) ([3], [22]). The leave affidavit must list prior leave applications and disclose all relevant facts about the application, whether supporting or adverse (s 102QAE(3); [4], [25]). Non-substantial compliance may lead to dismissal (s 102QAF(1); [4], [26]). The Court must dismiss if the proceedings are vexatious (s 102QAF(2); [5], [29]). Leave may be granted only if the Court is satisfied the proceedings are not frivolous, vexatious or an abuse of process, and have reasonable prospects of success (s 102QAG; [6], [53]).
• s 65DAAA of the Act: reconsideration of final parenting orders; the 14 March 2025 dismissal turned on that provision ([13], [16]).
• s 114Q / Part XIVB of the Act: publication under the pseudonym Vanetti (cover notes). Identifying publication is restricted.
• Pt 5.3 / r 13.38 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), read with s 102QAF(3)–(4): determination on the papers in the absence of the parties is expressly permitted ([8], [40]).

📌 Precedents Relied On

The Court relied on these authorities:

• Darley (No 4) [2023] FedCFamC1A 158 at [13]: the applicant bears the onus to show the proposed proceedings are not frivolous/vexatious/abuse and have reasonable prospects; failure means leave is refused ([7], [30]).
• Pencious & Searle (2017) FLC 93-805 at [77]–[88]; Fowles (No 2) (2026) FLC 94-298: a harmful proceedings restraint catches appeals ([3]).
• SCVG (2020) FLC 93-967: taking a step to start an appeal is itself instituting proceedings caught by Pt XIB ([22]).
• Garside [2024] FedCFamC1A 250: an expansive, prolix catalogue of alleged errors often conceals rather than reveals merit ([34]).
• Cheadle [2026] FedCFamC1A 138: grounds should be a specific and concise statement of the point sought to be argued; not a rambling critique ([35]).
• Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]: procedural fairness grounds are addressed first ([38]).
• Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 388 ALR 257 at [22]: procedural fairness is concerned with process, not result ([40]).
• House v The King (1936) 55 CLR 499: unreasonableness / discretionary error framing for Grounds 1 and 4–6 ([42]).
• Babic & Taccini [2024] FCWA 203; Vanetti & Harrison [2023] FedCFamC1A 180; Vanetti & Harrison [2025] FedCFamC1F 162: cited on the cover / background (legislation and history tables).

🧠 Analysis

Issue

When a litigant subject to a harmful proceedings order seeks leave to appeal a first-instance refusal of leave to institute further proceedings, when will the Full Court grant limited leave under s 102QAG — and when will it refuse leave for older or non-existent orders?

Rule

Leave under s 102QAE requires a supporting affidavit that substantially complies with s 102QAE(3) ([25]–[26]). The Court must dismiss if the proposed proceedings are vexatious (s 102QAF(2); [29]). Leave may be granted only if the Court is satisfied the proceedings are not frivolous, vexatious or an abuse of process and have reasonable prospects of success (s 102QAG; [53]). The applicant carries the onus (Darley (No 4); [7], [30]). Procedural fairness is about process, not outcome; determination on the papers under s 102QAF(4) is lawful ([40]). Prolixity does not automatically defeat leave if an arguable core remains ([33], [36]).

Application

Leave refused for 14 March 2025 and 25 March 2025

The applicant gave no evidence and made no submissions supporting leave to appeal the 14 March 2025 orders. Those orders (dismissing the s 65DAAA application and making the harmful proceedings order) were not appealed at the time and any appeal is now significantly out of time. No order was made on 25 March 2025. There was no basis for leave. That part of the application was refused ([22]–[23]).

Substantial compliance with s 102QAE(3) on this leave application

The Application in a Proceeding filed on 18 August 2026 was the first leave application under s 102QAE, supported by a lengthy affidavit ([27]). The present Application in an Appeal is the second. The supporting affidavit repeated the earlier evidence. Given there was no earlier relevant leave occasion to list, and a detailed affidavit setting out the relevant facts, the Full Court found substantial compliance with s 102QAE(3) for this leave application ([28]).

Prolix Notice of Appeal, but an arguable core

The proposed Notice of Appeal contained six grounds with 24 individual assertions of error, plus a further 25 pages of discursive and repetitive complaints (the judgment notes they were likely generated using artificial intelligence) ([33]). Citing Garside and Cheadle, the Court observed that prolix catalogues often conceal rather than reveal merit ([34]–[35]). Despite that, at the core were challenges to the leave-dismissal order alleging misapplication of law, factual error and unreasonableness ([36]).

Ground 3 (procedural fairness) fails

Addressed first as required ([38]). The particulars complained of failure to consider evidence, failure to address central issues, acceptance of the father’s assertions, and failure to recognise the significance of documentation ([39]). Procedural fairness is concerned with process, not result ([40]). The application was determined on the papers in accordance with s 102QAF(4) ([40]). The applicant was not denied procedural fairness. Ground 3 had no merit ([41]).

Grounds 1, 4, 5 and 6: arguable mischaracterisation of the case

These grounds asserted factual errors and that the refusal of leave was unreasonable in the House v The King sense ([42]). The crux of the proposed appeal is that there is prima facie evidence of a number of contraventions of the final orders, and that the applicant was not seeking to re-agitate the final parenting orders as the primary judge found ([43]).

The applicant identified that the primary judge’s finding that “the affidavit largely consists of complaints about the father’s ongoing exercise of powers conferred by the final parenting orders and disagreements with decisions that the orders expressly permit him to make”, and the abuse-of-process conclusion that followed, may be plainly wrong — because the father was not expressly permitted to make decisions about matters other than health and education, and even then only after consultation. It is not in contest that the parties hold equal shared parental responsibility in respect of religion ([44]).

That primary-judge conclusion influenced the ultimate finding that the proceedings were vexatious and an abuse of process ([45]). The Full Court held the applicant may have reasonable prospects of success on these grounds ([46]).

Ground 2: arguable error of law on s 102QAE(3)

The primary judge dismissed leave partly on the basis that the supporting affidavit did not substantially comply with s 102QAE(3) “in that the [applicant] failed to set out the litigation history as required by that section” ([48]). Section 102QAE(3) imposes positive obligations to disclose all relevant facts about the application, whether supporting or adverse ([49]). Whether that was an error of law is for the appeal proper rather than detailed determination at the leave stage ([50]). The applicant may have reasonable prospects on Ground 2 ([51]).

s 102QAG gateway met for the limited grounds

The Full Court was satisfied that Grounds 1, 2, 4, 5 and 6 disclose that the applicant may have an arguable case on appeal such that the appeal is not vexatious ([52]). The s 102QAG gateway was met: the proposed appeal proceedings are not frivolous, vexatious or an abuse of process and have reasonable prospects of success ([53]–[54]).

Conclusion

Leave was granted to file a Notice of Appeal against the 21 August 2026 orders, limited to Grounds 1, 2, 4, 5 and 6; time was extended seven days; and the Application in an Appeal was otherwise dismissed (Orders 1–3; [9], [55]). Leave to appeal the 14 March 2025 orders was refused, and there was no 25 March 2025 order to appeal ([22]–[23]). Ground 3 failed ([41]). The arguable core — possible mischaracterisation of alleged contraventions as a re-agitation of parenting, and possible misapplication of s 102QAE(3) — was enough to clear the s 102QAG gateway despite a prolix Notice of Appeal ([36], [43]–[54]).

🧠 Take-Home Lesson

• A harmful proceedings order is a gateway, not a brick wall. Leave under s 102QAG is available where the proposed proceeding is not frivolous/vexatious/abuse and has reasonable prospects ([53]–[54]).
• The applicant carries the onus. Fail to discharge it and leave is refused (Darley (No 4); [7], [30]).
• Cut to the arguable core. Prolix, repetitive, likely AI-generated grounds invite scepticism (Garside; Cheadle; [33]–[35]) — but an identifiable core can still found leave ([36], [52]).
• Do not try to revive stale orders without evidence. No contemporaneous appeal, significantly out of time, and no supporting evidence = leave refused ([22]–[23]).
• You cannot appeal an order that was never made. ([18], [23]).
• Procedural fairness is process, not result. On-the-papers determination under s 102QAF(4) is lawful ([40]–[41]).
• Characterisation matters. Labelling an affidavit as “complaints about decisions the orders expressly permit” can be plainly wrong where equal shared parental responsibility still covers other major long-term issues, and sole responsibility for health/education is consultation-conditioned ([43]–[46]).
• That characterisation can drive the vexatious finding. If it is wrong, the abuse/vexatious conclusion it influenced is vulnerable ([45]).
• s 102QAE(3) is about relevant facts, supporting or adverse — not a free-standing “litigation history” obligation as such. Misdescribing the section can be an arguable error of law ([47]–[51]).
• Substantial compliance for the leave affidavit before the Full Court is a separate question from compliance before the primary judge ([25]–[28], [48]).
• Support workers and McKenzie friends: when helping a client under a harmful proceedings order draft a leave application, strip the prolixity, identify the precise alleged contraventions of existing orders (not a re-run of the parenting case), and meet s 102QAE(3) by disclosing the adverse facts as well as the helpful ones ([25], [33], [43], [49]).

"Leave may only be granted if the applicant satisfies the Court that the proceedings are not frivolous, vexatious or an abuse of process, and have reasonable prospects of success." ([6]; s 102QAG)

"A harmful proceedings order filters hopeless litigation. It does not immunise every first-instance leave refusal from appellate scrutiny where the arguable core is that the primary judge mischaracterised the case." (FLAST takeaway)