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Family court

The problem with self-representation

By January 30, 2019November 1st, 2021No Comments

A recent article in Lexology reflects on “the irony” of the fact that self-representation during your family law litigation could wind up costing you more than what it would have to hire a lawyer in the first place.

While some people don’t have the option of obtaining legal representation because their financial circumstances don’t permit it, the article describes how sometimes even those who can afford a lawyer still choose self-representation as a tactical move—and how this can actually backfire, if it’s due to their conduct that a trial becomes needlessly lengthy, chaotic and complicated.

The Lexology article explains the danger of this with reference to a recently finalised parenting and property dispute involving a self-represented litigant in Canada which dragged through the courts there for an unbelievable 17 years. The fact that the trial was unnecessarily long and complicated was blamed on the self-represented wife’s conduct. And in determining who should pay the legal costs, the judgment referred to the wife’s uncooperative behaviour as “trying the patience of the Judge to a degree that is beyond description”, ordering her to pay the husband’s costs of C$150,000.

Delivering the decision, the judge noted the “proliferation of self-represented litigants in family law cases”.  He proffered possible reasons for this: cuts to legal aid budgets, people’s self-education on legal matters via the internet and the increasingly popular idea that it’s simple to DIY family law litigation.

But the judge also pointed out that in some cases, it’s a deliberate strategic choice by a litigant “to act for themselves because they think that the judge will be forced into being their advocate”. The judge was scathing about the latter type of litigant who “can readily afford legal counsel but simply choose to act for themselves because they think that it will provide them a tactical edge in the courtroom. It will cause the presiding judicial official to go overboard with assistance, not just procedurally but substantively, or so goes the rationale.”

This, he said, was “hijacking the proceedings at the expense of the other side (who has counsel) and then expecting mercy from the court when it comes to deciding costs. We do not have two sets of rules and principles for costs in family litigation — one for those who hire lawyers and one for those who act for themselves.”

While of course self-representation is not always a tactical or strategic move, a self-represented litigant’s unintentionally problematic conduct can still play a large role in how the courts determine costs. For example, we mentioned a case on our blog involving an Australian self-represented litigant who brought an “unnecessary” application and disregarded a judge’s advice to obtain legal advice on a very complex and highly legalistic issue which the litigant plainly didn’t understand. In that case, too, the litigant ended up being ordered to pay the costs of the other party.

Here in Australia, it’s common for parties to represent themselves in family law litigation. The courts here acknowledge the large pool of self-represented litigants and have consequently attempted to simplify procedures, make the court system more user-friendly, and steer parties towards early dispute resolution. Our courts have published guidelines in relation to cases involving self-representation. In summary, the guidelines describe how:

  • judges must ensure (as far as possible) that procedural fairness is afforded to all parties so there is a fair trial;
  • judges should explain any procedures relevant to a case. (For example, if your matter goes to trial, the judge should tell you of the order witnesses should be called, and whether you have the right to cross-examine them);
  • if something unusual is requested by the other side (for instance, if they want to call witnesses out of order, the judge could explain to you how that might affect your case);
  • judges should explain your right to object to evidence that might be considered inadmissible;
  • judges might suggest certain procedural steps that might be taken;
  • in some situations, a judge might: question witnesses, suggest applications or submissions that should be put to the court; or clarify any orders sought by the parties.

These guidelines are designed to make sure that self-represented litigants are not at a disadvantage by not having a lawyer at court representing them—all in the interests of justice.

You do have the right to self-represent if you are going through family law litigation. But if you do choose self-representation, 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 can 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.

To speak with us about how we can help you if you are a self-represented litigant, please give Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400. Your first no-obligation conference is free.

Source: Lexology

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.


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