The High Court has said “lack of legal knowledge is a misfortune, not a privilege”. The Family Law Courts and the staff of those courts give people who represent themselves the maximum assistance they can, but the courts have an obligation to be impartial. There is only so much that a judge can do to help a person who wants to run their own family law case. Yet many do. The Australian Institute of Family Studies reports that 34.7% of all filings for final orders in the Family Law Courts in 2012 involved self-represented litigants. It is usually financial reasons which cause somebody to represent themselves in the Family Law Courts. Running a court case yourself is complex and difficult and the law does not allow the court to compensate a non-lawyer for the time involved, even if they are successful.
Moreover the recent Productivity Commission report on access to justice indicates that the results for self-represented litigants are far less favourable than for litigants with lawyers. This is not surprising. Running a family law dispute is complicated. Not only do you need to be familiar with the processes, but you also need to know the law, whether it is laws concerning parenting disputes or financial matters.
The Family Law Courts have a Self-Represented Litigants committee of which I am a member. It looks at steps that can be taken to help people run their own cases, given that the process if difficult and complex. Some of the steps the committee has considered include:-
- Simplification of court forms. This is an ongoing process with the forms already having been refined and simplified over a number of years;
- Encouraging lawyers to provide “unbundled” services. This is where a lawyer might help a litigant run their own case by doing part of the work for them – e.g. drafting court documents or appearing at the final hearing after the client has represented themselves up to that point;
- Streamlined court processes for less complex matters – this has included consideration of a two hour trial (if the parties agree), streamlined processes for applications for make up time where there has been a denial of child contact, and pro forma Affidavits in parenting and property matters.
- .The Justice Café. This is a concept which has developed in Atlanta, Georgia. Lawyers help self represented litigants, at a lower fee , with advice and “unbundled assistance, up to a maximum of 10 hours.
The courts are considering these proposals.
As Deputy Chief Justice John Faulks has said, there is no simple solution for the problems created by people representing themselves. His comment was that we need to “get them a lawyer, make them a lawyer, or change the system”. With the cutback in federal legal aid funding, there are fewer people eligible for legal aid so getting them a lawyer if they can’t afford one is problematic. Giving people all of the skills they need to run their own case as well as a lawyer could is impossible. Most lawyers take 5 years of study to qualify to appear in court, after which considerable practical experience is needed to bring them to the point of being able to represent clients effectively. Nobody can acquire those skills overnight.
Changing the system is difficult but the steps outlined above are a part of that process.
Overall, people should get competent legal representation if they are involved in a family law dispute. Litigation about your children or your property is probably the most important legal dispute you will ever have. You should not jeopardise the outcome by thinking you can do it yourself.
At our firm, both in our Canberra and Melbourne based offices, we strive to offer a variety of services to our clients which are tailored to their individual needs and budgets. Please get in touch with us to discuss what help we can offer to you depending on your budget.
By Denis Farrar
Denis Farrar is a past President of the ACT Law Society and of the ACT Legal Aid Commission.
He served on The Family Law Council’s Committee which reported on Litigants in Person, and is currently the Law Council of Australia’s representative on the Family Law Courts’ Litigants in Person Committee.