In Australian Family Law, the decision by one party to end proceedings is a significant legal step, with implications for all parties involved. More commonly referred to as ‘discontinuance’, the phrase refers to the termination of a Family Law proceeding by one of the parties, bringing an end to their part in the litigation process.
In this article we will look in more detail at why a party might choose to discontinue their case, how the process works under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”), the implications for both parties and the associated costs.
Why would one party choose to discontinue a case?
There can be several reasons why a party might choose to discontinue their Family Law case. Legal proceedings can be grueling, consuming time, money and energy. A party may prefer to opt out of litigation for any or all these reasons and attempt to seek a resolution outside of the Court system.
Revisiting or initiating alternative dispute resolution methods such as mediation or arbitration to reach a mutually acceptable settlement may be the reason for a discontinuance.
Another common reason is when a party’s personal circumstances change. After initiating the proceedings, one party’s financial status, living arrangements, or family dynamics may substantially change, which could also transform their objectives in terms of the outcomes of the case.
Where a party has filed an application or response without first obtaining legal advice as to the merits of their case, but subsequently obtains representation can also result in that party filing an application to discontinue some or all of their orders sought.
How the discontinuance process works
To discontinue a Family Law case in Australia, a structured legal process is followed governed by the Rules.
The party seeking to discontinue must file a Notice of Discontinuance with the Court under rule 10.02, formally informing it of their intention to terminate their part in the proceedings on foot. The notice of discontinuance typically outlines case details, including what is the process being discontinued, the parties involved, and the specific orders being abandoned.
There is a prescribed form for a Notice of Discontinuance.
Once filed, the notice should be served on all other parties to the proceedings, including the independent children’s lawyer if relevant, as soon as practicable after filing.
Discontinuance is a unilateral decision made by one party. This means that the other party is not required to discontinue their case at the same time. In fact, if the other party is seeking orders they can continue with their case, pursuing those orders, and even costs from the other party.
Other factors to consider
A party’s application or response is finalised once the Notice to Discontinue is filed.
Should that party change their mind and wish to continue their proceedings after filing a Notice to Discontinue, the Court will not set aside the notice unless it is to prevent an abuse of process.
If the party who filed a Notice to Discontinue then files a new application, seeking similar orders as those in the discontinued application, the Court may refuse to hear it.
The case of Olofsson  FCCA 3467 set a precedent that the Court’s discretion to grant leave to apply to withdraw a Notice to Discontinue will only be exercised in exceptionally limited circumstances.
A distinction in that case was made by Judge Altobelli between the Court’s exercise of this discretion in family law property cases and family law parenting cases. This was because in parenting matters, even though a party may file a Notice to Discontinue the Court must still make orders in the best interests of the child. Proceedings are not finalised simply because a notice is filed.
Interim Orders that have been made in a Family Law case are not automatically discharged by the filing of a Notice to Discontinue. This is because interim orders are defined in the Rules as an order made by a Court that operates until another order, or a final order is made. It is only after a final order has been made that an interim or interlocutory order is discharged and ceases to have effect.
As indicated above, the filing of a Notice of Discontinuance does not finalise the whole of a Family Law matter. The other party or parties may continue their part in the process. This is especially so in parenting matters, where interim orders remain in force until the Court makes a further or final order.
Rule 10.03 of the Rules provides that the other party to a discontinued application (or response) may apply for costs. There are specific time frames and other conditions within subrules (2) and (3)
If an application for costs is may by a party under rule 10.03, the Court must still consider the relevant factors under section 117 of the Family Law Act 1975.
Seek expert legal advice
The motivations for filing a Notice of Discontinuance in a Family Law matter may be complicated. From a desire to seek an out-of-Court solution to adapting to changing circumstances to minimising the emotional and financial toll of litigation. No matter what the reason, filing a Notice to Discontinue can have significant implications, including the making of final orders and orders for costs when the other party proceeds with their case.