Representing Yourself in Family Law Proceedings
It is common in the Federal and Family COurt of Australia (FCFCA) for parties to represent themselves during all or part of the proceedings. A person may choose to self-represent because they cannot afford a lawyer and do not qualify for legal aid. They may also choose to do so because they want to save money and think they do not need a lawyer. This article outlines what you need to keep in mind if you are considering representing yourself in family law proceedings..
Try to resolve the matter out of court
If you are applying for parenting orders, the court will require parties to have tried to resolve their dispute through Family Dispute Resolution (FRD) before starting proceedings. Unless there is a specific and compelling reason why mediation is not suitable for you, you should invite the other party/ies to FDR and make a genuine attempt to reach a mutually satisfactory agreement before filing an application.
If you have tried mediation and have been unable to resolve your situation, you should apply for orders by filing an application together with an affidavit and attach the section 60I certificate. If you believe mediation is unsuitable for your case (for example, because there has been serious violence by one of the parties), you must outline in your affidavit the reasons you say that the court should grant an exemption from Family Dispute Resolution.
Thoroughly prepare your material
If you are seeking parenting orders, you must file:
- Notice of Risk
The Notice of Risk is a form where you must declare any knowledge or suspicion you have that any of the children involved in the matter are at risk of abuse or neglect by any of the adults involved.
If you are responding to an application for parenting orders, you must file:
- Notice of Risk
An application or response must clearly set out the orders that the Applicant or Respondent is seeking, both in the interim and on a final basis. If you change your mind about some of the orders you want the court to make after you have filed your application or response, you can file an amended application or response.
Your affidavit must clearly set out all the relevant facts that you are relying on in support of your application or response. Under the Family Law Act, parties have a duty to provide full and frank disclosure to the court and to the other parties. If you are representing yourself you must be particularly careful not fail to disclose facts that are not favourable to your case.
Your must clearly state in your material the address at which you wish to be served. Three copies of the documents must be filed, including the original signed copy. Your affidavit must be properly witnessed by a qualified person like a solicitor or a JP. Once your documents have been filed, you must ensure the documents are served on all other parties in accordance with the legislation.
If you suspect that there is material that would help your case but is not in your possession, you can issue subpoenas to obtain it. Examples of material that a party may wish to obtain by subpoena include police records, hospital records and the children’s school records.
The court is very particular about the form of subpoenas. If you are representing yourself it is important to ensure that they are prepared correctly. Each subpoena must be addressed to the correct individual within the organisation or department and a fee must be paid to cover the organisation’s costs in preparing the material for court. The exact amount required will vary between organisations and between states and territories so it is important to check with the person or organisation as to what their requirements are. You must also ensure that your subpoenas are filed in time for the material to be produced. Each party to a parenting matter is allowed to issue up to five subpoenas. If you want to issue more than five, you must seek the court’s leave.
Representing yourself in court
When representing yourself in court, a person should be courteous and mindful of courtroom etiquette. It is important to dress neatly and conservatively and ensure any mobile devices are switched off. Do not be emotional or make accusations in court. Rather, draw the judge’s attention to the sections of your affidavit where you have outlined your concerns. Be brief and to the point and respectful. If the judge asks you a question, answer the question as clearly and succinctly as you can. Address the judge as ‘Your Honour.’
The dangers of representing yourself
There are a number of drawbacks to representing oneself in family law matters. These matters are often emotionally charged and this can make it difficult for a person to assess the strength of their case and to be objective when evaluating the evidence.
Family law is a discretionary jurisdiction. This means that the judge may make the orders that they consider to be in the children’s best interests. This means that there is not a single correct decision in any matter. Rather, the judge can make any of a number of possible decisions based on a correct application of the principles of family law and their assessment of the evidence. The fact that family law is a discretionary jurisdiction makes it hard to successfully appeal a decision. This makes it imperative to get the desired outcome at first instance.
There is often a large amount of evidence in parenting matters and understanding its implications can be difficult for someone who does not have legal training. If your matter proceeds to a contested hearing, this will mean cross-examination of each witness is necessary as well as legal submissions, which many persons who are self-representing find difficult and intimidating.
An experienced family lawyer can make sure that your case is presented professionally and maximise your chances of getting the desired outcome. Family lawyers have a thorough knowledge of the principles of parenting matters, court practices and the principles of evidence law and will present your case in the best possible light to maximise your chances of getting the desired outcome.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.