N is for notice of discontinuance – A-Z of Family Law

What happens when a party who is involved in court proceedings no longer wants to participate? The answer, in many cases, is a Notice of Discontinuance (‘NOD’).

Such an option is found within Part 10.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘the Rules’), which provides:

• A NOD can be filed at least 14 days before the start of a final hearing (if filed after this, an NOD must have the leave of the Court) (Rule 10.02(2)).
• Leave of the Court must also be obtained if property proceedings are on foot or if a party has died before the proceeding is decided (Rule 10.02(3)).
• If another party has an application or response on foot, those proceedings are not discontinued (Rule 10.02(5)).
• A party may seek costs against a party discontinuing proceedings (Rule 10.03).

NOD’s are not overly common in family law proceedings, though not so rare as to not be an important consideration

The 2024 decision of Judge Blake of Pritchard & Bowman [2024] FedCFamC2F 1491 involved the determination in Division 2 of the Federal Circuit and Family Court of Australia of a novel question about how an NOD operates.

The applicant father filed for parenting orders, with the respondent mother naturally being the other party. The proceedings progressed for several months, albeit without the respondent mother filing a single document. Interim orders regarding the children were made, and an independent children’s lawyer (‘ICL’) was appointed.

The parties ultimately reached a final consent position, to which the ICL was not in a position to agree. Consequently, the applicant father filed a notice of discontinuance. The proceedings were, however, listed before a Registrar who subsequently listed the proceedings for an undefended hearing before a Senior Judicial Registrar. The applicant father filed an application for review which reflected the issue for determination before Judge Blake.

The respondent mother consented to the discontinuance and didn’t oppose the application for review; the ICL, however, did.

Judge Blake ascertained that the NOD had been filed in accordance with the Rules, and that the Rules did not make a NOD contingent on the Court accepting it. Provided that a NOD was in accordance with the Rules, it must be accepted.

Furthermore, the respondent mother had not filed any response document and so Rule 10.02(5) was not enlivened.

Judge Blake then reiterated Rule 3.11(5)(a) of the Rules, being that the appointment of an ICL ceases when an application is determined or withdrawn.

As a result, the proceedings were at an end and the jurisdiction of the Court was no more.

Judge Blake nonetheless considered various relevant decisions submitted by the ICL, albeit that each was either distinguished from the present factors or respectfully disagreed with by Judge Blake.

Ultimately, Judge Blake confirmed that no case law could be identified that supported “the proposition that an ICL is able to independently maintain proceedings that were instituted by parties, but then discontinued by them.”

All extant orders were discharged and the proceedings dismissed.

The decision of Pritchard & Bowman is an interesting insight to an infrequent area of the Rules, showing that:

1. A NOD can be a useful method to reduce costs in certain situations e.g. parenting proceedings that are in early stages or involve a non-participating party that has not filed any response materials.

2. An ICL cannot continue proceedings which have been determined or discontinued, though naturally an ICL must nonetheless consent to a joint position in order to finalise proceedings by consent