Pritchard & Bowman
[2024] FedCFamC2F 1491
•25 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Pritchard & Bowman [2024] FedCFamC2F 1491
File number: BRC 15641 of 2022 Judgment of: JUDGE BLAKE Date of judgment: 25 October 2024 Catchwords: FAMILY LAW – Application to review decision of Registrar – effect of notice of discontinuance –where Applicant filed notice of discontinuance – where no response filed – where Registrar ordered matter be set down for ‘undefended hearing’ after notice of discontinuance filed at urging of Independent Children’s Lawyer (‘ICL’) – where Court is no longer seized of the matter – where ICL has no standing to maintain the proceeding – Registrar orders of no effect – application for review upheld and proceeding discontinued. Legislation: Family Law Act 1975 (Cth) Pt 7 Div 10, ss 65C, 69C.
Family Law Rules 2004 (Cth) r 8.02(5).
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 3.11(5), 10.02, 10.02(2), 10.02(5).
Cases cited: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 411 ALR 615
Henlon & Farnish [2019] FamCA 859
Oberle & Oberle [2012] FMCAfam 875
T and N [2003] FamCA 1129
Division: Division 2 Family Law Number of paragraphs: 27 Date of hearing: 17 October 2024 Place: Melbourne Solicitor for the Applicant: Mr Kolo of Best Wilson Buckley Family Law Solicitor for the Respondent: Self-represented litigant Solicitor for the Independent Children's Lawyer: Mr Kingston of Norman & Kingston ORDERS
BRC 15641 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR PRITCHARD
Applicant
AND: MS BOWMAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
25 OCTOBER 2024
THE COURT ORDERS THAT:
1.The Orders of 10 September 2024 be discharged.
AND THE COURT NOTES THAT:
A.The father filed a Notice of Discontinuance on 16 August 2024, which had effect under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The mother never filed a Response. The proceeding has been discontinued.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BLAKE:
The question before the Court is whether the Court is able to make any orders in parenting proceedings in circumstances where the father has filed a Notice of Discontinuance, and where the mother has not filed a single document, including any response.
For the reasons that follow, I find that the Court does not have jurisdiction to entertain the matter or make any orders once proceedings have been discontinued. For that reason, the application to review the orders of the Registrar filed by the father succeeds.
BACKGROUND
On 12 December 2022, the father filed an initiating application in this Court seeking parenting orders. Since that time, the proceeding has been through various stages of case management. The mother has never filed a single document in the proceeding, despite a multitude of orders requiring her to do so. That said, she has participated at some hearings, and participated in the preparation of a Family Report. The Independent Children’s Lawyer, Mr Kingston, (‘ICL’) has played an important and invaluable role in ensuring the proceedings remain on track.
Among the orders made by the Court in this matter are the interim orders made by a Registrar by consent on 28 May 2024. Those orders required the child to live with the father and spend time with the mother under supervision.
On 6 August 2024, a Registrar made orders for the mother to undergo a psychiatric assessment. In notations to its orders made that day, the Court noted the parties had reached agreement as to the form of final consent orders, however, the ICL was not prepared to consent to those orders prior to being informed of the mother’s illness through a psychiatric assessment.
On 16 August 2024, the father filed a Notice of Discontinuance. On that same day, a Registrar vacated the next directions hearing (which had been scheduled for 15 October 2024) and listed the matter for further mention on 10 September 2024.
On 10 September 2024, a Registrar made orders transferring the matter to a Senior Judicial Registrar for ‘undefended hearing’. The Court, relevantly, made notations to its orders that day. Notation H recorded that the child was placed in the care of the father by the Department of Child Safety, Seniors and Disability Services in early 2024, with a long-term support and safety plan dated mid-2024, and the case was then closed shortly thereafter. Notation I recorded that where the father’s application was discontinued, all previous interim orders would be discharged.
On 25 September 2024, the father filed an Application to Review the orders of the Registrar made on 10 September 2024 (‘Review Application’). That is the application presently listed before me.
POSITION OF THE PARTIES AND THE ICL
The father sought orders that the proceeding be effectively discontinued given the filing by him of the Notice of Discontinuance. The mother appeared and, having heard the submissions as to the effect of discontinuance, told the Court she would prefer the matter out of Court so that she and the father could reach an agreement privately.
The ICL opposed the Review Application. The submission effectively made by the ICL was that the Court remained seized of the matter and once seized of it, was required to determine any proceeding according to what was in the child’s best interests. Asked what authority supported that proposition, the ICL pointed the Court to Oberle & Oberle [2012] FMCAfam 875 (‘Oberle’), T and N [2003] FamCA 1129 (Moore J) (‘T & N’) and Henlon & Farnish [2019] FamCA 859 (Baumann J) (‘Henlon’). The ICL advised the Court that the mother had undertaken the psychiatric assessment and that the proceeding needed to be determined according to what was in the child’s best interests.
CONSIDERATION
Section 69C of the Family Law Act 1975 (Cth) (‘Act’) sets out who may institute particular kinds of proceedings relating to children. Neither that section nor the sections that follow it empower an ICL to institute proceedings or maintain proceedings once the parties discontinue proceedings.
Section 65C of the Act sets out who may apply for a parenting order. Nothing in that section empowers an ICL to institute proceedings or maintain proceedings once the parties discontinue proceedings.
Part 7, Division 10 of the Act deals with the independent representation of children’s interests. Nothing in that Division empowers an ICL to institute proceedings or maintain proceedings once the parties discontinue proceedings.
Rule 10.02 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘Rules’) deals with the discontinuance of proceedings. It provides as follows:
(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.
Two immediate observations may be made about rule 10.02. First, a party does not require leave of the Court to file a notice of discontinuance if it is filed at least 14 days before the day fixed for Final Hearing. This is the situation with which the Court is confronted. Second, the filing of a notice of discontinuance does not require the Court to accept the notice of discontinuance. So long as the notice complies with sub rule 10.02(2), it operates.
It is important to mention sub rule 10.02(5). The discontinuance of an application or response by a party does not discontinue any other party’s application or response. That rule has significance where the opposing party has filed an application or response. In this matter, the mother has not filed any response. Sub rule 10.02(5) is therefore not enlivened in this case.
There is then rule 3.11(5)(a) of the Rules. That sub rule provides, relevantly, that the appointment of an ICL ceases ‘when the Initiating Application (Family Law) is determined or withdrawn’.
In my view, the operation of the provisions above are clear. Once a notice of discontinuance is filed by a party at least 14 days prior to Final Hearing (and in circumstances where no opposing response or application has been filed by other parties), the proceedings are at an end. The appointment of the ICL ceases. There is no longer any justiciable controversy: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 411 ALR 615 at [72]-[74] (Edelman J). The jurisdiction of the Court is no longer enlivened and the Court is not able to make further orders.
It is important to address briefly the authorities which the ICL relied on.
In Oberle, both parties had filed a notice of discontinuance. When the matter was called on later, however, they nevertheless attended with the ICL. It is clear from the reasons that the parties consented to the orders made. That fact differentiates Oberle from the present matter. How the Court could make consent orders in circumstances where both parties filed a notice of discontinuance is not explored. It might be that the consent of the parties operated to withdraw the notice of discontinuance, however, no order was made to that effect, and there is no discussion of that issue. Whatever the outcome or reasoning, however, Oberle does not stand for the proposition that the Court has jurisdiction to entertain issues between parties once proceedings have been discontinued in accordance with the Rules. Nor does Oberle stand for the proposition that an ICL is able to independently maintain proceedings that were instituted by parties, but then later discontinued by parties.
T & N was a parenting matter that was listed for Final Hearing before Moore J. At the hearing, Moore J refused to make consent orders submitted by the parties. The case does not deal with the issue of a party filing a notice of discontinuance. It does not stand for the proposition that the Court has jurisdiction to entertain issues between parties once proceedings have been discontinued. Nor does it stand for the proposition that an ICL is able to independently maintain proceedings that were instituted by parties, but later discontinued by them.
Henlon was a parenting matter that was listed for Final Hearing before Baumann J. Three days before the Final Hearing, the father filed a notice of discontinuance. The mother had failed to participate in the proceedings and had failed to file any material. Baumann J made orders discharging all previous orders in relation to the child, and dismissed all outstanding applications. He did so taking into account the child’s best interests.
At face value, Henlon appears to support the proposition advanced by the ICL in this matter that notwithstanding the filing of a notice of discontinuance, the Court may remain seized of a matter and make orders. The following matters, however, are relevant as to whether this Court is required to, or should, follow the decision in Henlon:
(a)notwithstanding that he filed a notice of discontinuance, the father’s solicitor appeared before Baumann J and obtained instructions from her client that the father would not oppose the orders the Court proposed to make. That is not the situation before the Court in the present matter;
(b)the reasons of Baumann J do not set out or address the operation of the relevant rules or the legislation. No provision of the rules or the legislation is identified as enlivening the jurisdiction of the Court once a proceeding has been discontinued. Baumann J stated at [4] that the application of the father made in October 2017 is the application still before the Court, but how that is the case given the notice of discontinuance was filed is not explained; and
(c)it is not clear how the ICL had standing or was otherwise able to make submissions before Baumann J. Rule 8.02(5) of the Family Law Rules 2004 (Cth) (which applied at that time to the matter before Baumann J) provided that the appointment of an ICL ends when an initiating application is withdrawn. The ICL’s appointment therefore ended when the father discontinued the proceedings.
In the circumstances, I am not persuaded that Henlon stands for the proposition that the Court has jurisdiction to entertain proceedings once those proceedings have been properly discontinued by the parties in accordance with the Rules. I am also not persuaded that Henlon stands for the proposition that an ICL is able to independently maintain proceedings that were instituted by parties, but then discontinued by them. I am not persuaded I am required to follow the decision in Henlon. There is a significant difference between that matter and the present matter.
In summary, the father has discontinued this proceeding in accordance with the Rules. The mother never filed a response. The proceeding is therefore at an end. There is no controversy between the parties to determine and the jurisdiction of the Court is no longer enlivened. The appointment of the ICL is at an end. The Registrar had no power to make the orders that were made on 10 September 2024. As Moore J observed (albeit in a different context in T & N), parents are quite free to make such care arrangements as they choose, subject to state intervention on child protection issues.
The Registrar had no power to make any orders once the Notice of Discontinuance took effect. Strictly speaking, any purported orders have no force or are invalid, and therefore no further order is necessary or could be made. Out of an abundance of caution, and to provide certainty, I will order that the orders of 10 September 2024 be discharged.
While the Court has not accepted the submissions of the ICL, the Court nevertheless records its gratitude to Mr Kingston for his diligence in this matter, who was clearly motivated to ensure the best interests of the child were met.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 25 October 2024
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