Self-represented litigants: There’s a huge pool of Australians who represent themselves through family court, known as self-represented litigants. For example in 2019-20 the Family Court said at least one party was unrepresented in 40% of trials. Why do people represent themselves rather than hire a lawyer? There’s a range of reasons.
Most people choose to self-represent mainly because it’s cheaper than going to lawyers. Some people also feel that self-representing gives them more control over their matter and that they are in the best position to tell their own story. In other cases, people just have a fundamental dislike of lawyers. Sometimes they may feel have no choice but to self-represent, such as if they can’t afford legal advice but are ineligible for Legal Aid. There’s also a darker side to self-representation, whereby perpretrators of abuse use self-representation as a tool to conduct legal systems abuse.
Having judges explain procedural details here and there along the way to self-represented litigants has always been viewed as enough to help them traverse the system. The courts have attempted to simplify procedures, make the court system more user-friendly, and steer parties towards early dispute resolution, and there are published guidelines in relation to cases involving self-representation.
It’s all designed to make sure that a self-represented litigant is not at a disadvantage by not having a lawyer at court representing them. But a group of researchers from University of Technology Sydney have released Government-funded research data on the subject of self-represented litigants which sheds more light on the needs of self-represented litigants and reveals they are still at a major disadvantage compared to those with legal representation.
UTS academics Dr Jane Wangmann, Ms Miranda Kaye and Associate Professor Tracey Booth led the project, which aimed to document current practice in the family law courts in situations involving self-represented litigants whose matters also include family violence issues. This is a crucial aspect of family law as statistics show an overlap of cases involving self-represented litigants and cases involving allegations of family violence.
What are the main issues for a self-represented litigant?
Safety issues remain a major concern for self-represented litigants, given the prevalence of family violence allegations. Many self-represented litigants have reported feeling unsafe, often because they are completely unaware of court safety measures (safe rooms, separate entry and exit points, security, alternative means of appearing in court, etc) but also because such measures are not always available in each court (note that this would also affect represented litigants).
The researchers say the study shows the need to bring a ‘family violence lens’ to the system and to consider the complex needs of self-represented litigants experiencing family violence issues. Delivering on safety is crucial, because when litigants feel unsafe it can impact on presentation of evidence in court, which impacts on delivering true justice. Similarly, consent orders can sometimes be made in a context of bullying or fear. The researchers say more widespread use of trauma-informed practice in the court system is needed.
Access to legal information—and advice
As mentioned above, self-represented litigants often suffer from a lack of adequate information. There’s a pressing need to establish better information systems for the self-represented litigant, as although there are numerous services available, there’s no centralised, authoritative website for them. There’s often a general lack of understanding of how to present a case, negotiate, and avoid costly mistakes. Self-represented litigants often don’t appreciate the primacy of paperwork in the court system. They need more assistance with the practicalities and technicalities of documentation during their matter, so they don’t miss opportunities to present important evidence to the court. Poor quality evidence again affects true justice being delivered. A self-represented litigant also needs more assistance understanding the practicalities of consent orders, to avoid contraventions and enforceability problems.
Not only does access to information need to be improved, but the quality of the information needs to be reframed, so it’s not just initial legal and procedural information that’s provided, but access to ongoing legal advice for the entire litigation. This necessarily means funding increased access to duty lawyers and requires enhanced family violence training across court personnel.
Reforming the family law system
Addressing system change may require a paradigm shift from the current “system premised on a model of legal representation”. The reality is that there’s a large proportion of self-represented court users who are forced to deal with a fragmented legal system, especially where it intersects with family violence systems.
In the end, much of it comes back to funding. There’s simply no avoiding the continuing pressing need for adequate resourcing of the family courts, for example to implement court building safety measures, to hire more duty lawyers to handle court caseloads and to increase court personnel training in family violence issues.
Source: The Conversation
You can read the research in detail here.
Should I represent myself?
You have the right to self-represent if you are going through family law litigation. But if you do choose to represent yourself, to make sure you truly get a fair trial and avoid making costly legal errors, consider first giving a family lawyer a call in order to get some initial advice. This advice might include what to expect at court, what questions a judge might ask of you, and general help preparing for your hearing. Your lawyer will ensure you understand the potentially disastrous consequences of not following the correct process, or of filing incorrect or irrelevant documents, or filing them out of time. They will ensure you correctly identify and plead a cause of action, avoiding proceedings that require extra court attendances or become needlessly drawn out and confusing.
You could also consider hiring a solicitor to act as a “shadow solicitor” to help you with preparing for court, but who will not actually represent you in court. You could also look into unbundled legal services, where your lawyer’s role is limited to a number of agreed services, rather than the traditional model of engaging a lawyer to act for you from initial instructions to settlement or final court proceedings.
If you are thinking about becoming a self-represented litigant, ie. going to court and representing yourself, why not give Alliance Family Law a call? We can give you some advice about what to expect at court, what questions a Judge might ask of you, and generally to help you prepare for your hearing. It’s important that you’re armed with advice, as you have a right to have a fair trial. Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.