The perils of representing yourself in the Family Court

The Family Court of Australia was one of the first courts to recognise self-represented litigants as a permanent and significant client group.

Research indicates that 20 to 30 percent of Family Court cases involve a party who is self-represented at some point.

It is important to weigh up the benefits of using a family lawyer even if you don’t have to, as the consequences of not following the correct process, filing incorrect documents or filing them out of time could be disastrous.

In this article, we examine some of the issues that can be encountered, as well as some tips and traps to avoid.

Key Takeaways

• Self-represented litigants are common in family law matters, but managing a case without legal advice can create serious risks.
• Court forms, DIY kits and duty registrars may help with process, but they do not replace personalised legal advice.
• Mistakes with documents, deadlines, evidence or court procedure can affect the outcome of a family law matter.
• Self-represented cases may take longer, involve more adjournments and create additional pressure on both the parties and the court.
• Practical decisions made during separation, such as moving out of the family home or failing to secure financial records, can have long-term consequences.
• Speaking with a family lawyer early can help identify the key issues, avoid common mistakes and improve the chances of a better outcome.

How the Family Court can help

The Court has gone to considerable lengths to streamline the process for self-represented litigants at court, providing them with increased support by simplifying its procedures to encourage the early resolution of disputes, and to make the Court more user-friendly.

The Court now provides do-it-yourself kits for guidance and assistance in completing some of the most common forms, including consent orders, financial statements, affidavits and services.

In addition and where possible, the Court provides a duty registrar to assist self-represented litigants with Court processes and procedural advice.

Things to consider about the Court process

• Where one or more of the parties is a self-represented litigant, the principal effect on the judicial officer is to increase the time spent on the case, both before and during the trial and may include more delays than is usual and more adjournments. Family Court staff and court officers, while not being able to give legal advice, are required out of necessity to explain the court processes and procedures to the litigant.
• Self-represented litigants often fail to identify a known cause of action in their pleadings.
• A common complaint is that judges extend too much leniency to self-represented litigants in making submissions. There may be a perception that judges sometimes take the line of least resistance and let the self-represented litigant “get it off their chest”.
• Situations frequently arise, particularly in the family law or domestic relationships jurisdictions, where self-represented litigants use the court proceedings as an opportunity to embarrass or harass their former partner. This may or may not be deliberate.

Instructing a lawyer too late

We have encountered many potential clients who are either in the process of representing themselves in the Family Court or where their matter is already complete.

What we usually discover in these cases is that the outcome could have been better, the matter requires the immediate attention of an experienced lawyer or it may have been so badly put together or presented that it is past the point where even the best lawyer can help.

There are also many practical issues that your lawyer can advise you about, that don’t appear in a DIY kit if you are separated or in the process of divorce.

Some tips, traps to avoid and issues to consider

• Agreeing to move out of the matrimonial home can cost you a lot of money. Seek legal advice first.
• Everything you say, text, email, tweet or put on Facebook including things said in the strictest confidence to family or friends can get back to your former partner.
• Don’t rely on memory — keep a diary but remember it may be read by the Judge, so be careful what is written. Perhaps limit it to points that will jog your memory.
• If you decide to engage a lawyer, then make it worthwhile and have a comprehensive discussion, not just those points that you feel are in your favour.
• Before you separate take photographs or photocopies of bank books or accounts, taxation records and superannuation papers, so the sums and account details are identifiable.
• Before you move out take all your papers with you, including jewellery and your items.

Conclusion

What many people attempting a DIY divorce don’t know is how much they don’t know. It is like many tasks where experience can help speed the process and lead to a more successful outcome. Self-represented litigants often have difficulty identifying and pleading a cause of action, which may result in more court attendance as well as confused and lengthier trials.

It is most advisable to see an experienced family lawyer first to identify the appropriate issues, advise you on your options on those issues, fight for a positive outcome on those issues, and make sure all of the issues have been examined.

If you know someone who may need assistance get them to call us on 07 4637 6300, send us a message online or visit us at any of our offices located in Toowoomba, Roma and Warwick.