Proceedings in the Federal Circuit and Family Courts are often ended by the parties consenting to a final order or the Court making a final order after a contested hearing.
- Your application is finalised at the time the notice of discontinuance is filed.
- If you decide you want to continue after filing a notice, the Court will not set aside your notice unless it is to prevent an abuse of process.
- If you, subsequent to filing a notice, file a new application seeking similar or the same orders as your previous application, the court may refuse to hear the new application because of the finality principle.
- Interim orders are not automatically discharged by filing a notice.
Rule 10.02 provides:
(1) A party may discontinue an application or response by filing a notice of discontinuance in accordance with the approved form.
(2) A notice of discontinuance may be filed:
(a) at least 14 days before the day fixed for the final hearing of the application; or
(b) with the leave of the court, at a later time.
(3) However, a party must not file a notice of discontinuance in a proceeding under the Family Law Act without the leave of the court if:
(a) the proceeding relates to the property of a party; and
(b) one of the parties dies before the proceeding is decided.
(4) A party filing a notice of discontinuance must, as soon as practicable, serve a copy of the notice on each other party to the proceeding.
(5) Discontinuance of an application or response by a party does not discontinue any other party’s application or response.
The effect of filing a notice of discontinuance is that upon filing the notice, a parties’ application (or response) is ‘discontinued’.
It is important to note that, any other applications or responses of the other parties are not discontinued by the filing of your notice. Therefore, even if you are the applicant, if the other party is seeking orders in their response, those proceedings are still on foot with the respondent free to continue to pursue those orders.
If after filing your notice, you decide that you want to withdraw or amend the notice, you can only do so with the Court’s leave. It seems that leave will only be given in exceptional circumstances and only in order to prevent an injustice or abuse of process (Olofsson  FCCA 3467).
Olofsson was an application to withdraw a notice of discontinuance filed by the applicant in proceedings for parenting orders. The court dismissed the application and ordered that the respondent’s response proceed to an undefended hearing. In that case Judge Altobelli conducted a review of the recent cases dealing with the setting aside of notices of discontinuance, the court rules and the principles underpinning those rules.
In Olofsson, Judge Altobelli considered a previous decision of Judge Jarrett in Laramire & Caul, which was also an application to withdraw a notice but in proceedings for property orders rather than parenting. In that case Judge Jarrett concluded that while a determination to set aside a filed notice of discontinuance is a discretionary exercise, it is not an unfettered exercise of discretion (para ). Some of the considerations that Judge Jarrett highlighted in the exercise of the discretion are:
(a) Did the applicant knowingly and voluntarily file the notice of discontinuance?
(b) Was the filing of the notice of discontinuance procured by fraud or duress?
(c) Was it filed pursuant to a void, or voidable, agreement?
(d) Did the filing of the notice of discontinuance otherwise involve an abusive process?
(e) Is the setting aside of the notice of discontinuance necessary to ensure that the Court’s process does not cause an injustice? and
(f) If the notice of discontinuance was set aside, does the application for review have no reasonable prospect of success?
Coming back to Olofsson, Judge Altobelli then considered the decision of Chen v Monash University  FCAFC 66 for its discussion of the underlying principles of the Rules of the Court dealing with the finality of proceedings (‘the finality principle’).
In conclusion, while Judge Altobelli agreed with reasoning of the Judges in those previous decisions as to the importance of the finality principle and why the discretion to set aside notices should only be exercised in limited circumstances, he also discerned that parenting cases were different because even though a party may file a notice of discontinuance, the court is still tasked to make orders in the child’s best interests, and it follows that the proceedings have not finalised because the notice was filed (paras  – , , , ).
Regarding the question of costs, Rule 10.03 provides:
(1) If a party discontinues an application or response, another party to the proceeding may apply for costs.
(2) Unless the court directs otherwise, an application for costs must be made by a party within 28 days after service on the party of the notice of discontinuance.
(3) If an order for costs is made against a party, and the party brings against the party to whom the costs are payable a further proceeding on the same or substantially the same matter, the court may stay the further proceeding until the costs are paid.
It should be noted that even though it is open for another party to make an application for costs, this does not mean that a cost order will be made. The court will still consider the factors in section 117, as they would in any other application for costs, before exercising their discretion to make an order.
In Parke & The Estate of the Late A Parke  FamCAFC 248 the appellant passed away after filing his appeal, the personal representative of his estate subsequently filed a notice to discontinue the appeal, the respondent then applied for their costs on an indemnity basis. While costs were ultimately ordered on a standard basis, this was only after Justices May and Ryan assessed the matter under section 117 of the Family Law Act.
It would seem that interim orders are not automatically discharged upon the filing of a notice of discontinuance.
An interim order is defined in the FLR as ‘an order made by a court that operates until another order or a final order is made’.
Rule 5.1 provides that ‘On the making of final orders in a proceeding, any interlocutory order made in the proceeding pending further order is automatically discharged and ceases to have continuing effect’.
As discussed above, in the Family Law jurisdictions and particularly applications for parenting orders, the proceedings as a whole are not finalised by the filing of a notice of discontinuance. The court must still make orders that are in the children’s best interests and therefore interim orders remain in force until the court makes a further or final order.
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