You may wish to discontinue proceedings for a range of reasons, such as lack of financial means to continue to litigate, emotional exhaustion, a change in circumstances or opportunity to mediate. The effect of discontinuing proceedings means that you are no longer seeking some of or all of the orders previously sought.
Process of discontinuance
To discontinue proceedings in Australia, a structured legal process is followed, governed by the Family Law Rules.
If you wish to seek to discontinue proceedings, you must file a Notice of Discontinuance with the Court, formally informing the Court of your intention to terminate your part in the proceedings. The notice generally outlines case details, including what is the process being discontinued, the parties involved, and the specific orders being abandoned.
Once the notice has been filed, it must be served upon all parties to the proceeding. However, this action does not preclude the other side from continuing with the proceedings and obtaining a cost order against you for discontinuance.Should you wish to neutralise, or defend, any cost orders made against you for discontinuance, we have outlined the following for your consideration.
Defending a costs order for discontinuance
In the case of Parke & The Estate of the Late A Parke,[1] the Full Court held that a discontinuance of itself does not mean that a costs order is automatic. Section 117 of the Family Law Act 1975 (Cth) (‘FLA’) provides that each party to proceedings shall bear their own costs. However, section 117(2A) of the FLA enables the Court to exercise discretion by assessing the following considerations:
- The financial circumstances of the parties;
- Whether any party is receiving legal aid assistance;
- The conduct of the parties;
- Whether any party has been wholly unsuccessful in the proceedings;
- Whether any party has made an offer to the other party to settle; and
- Any other matters that the court may consider appropriate.
Therefore, if you are currently in a situation where you have a costs order made against you for discontinuance, or you are considering to discontinue proceedings, we suggest that you speak with one of our legal professionals as soon as possible. We will help you discern whether any of the above considerations are relevant to your circumstances and advise you with regard to our next steps.
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