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REPRESENTING YOURSELF IN FAMILY LAW PROCEEDINGS
Notes prepared in 2003
Publish Date: August 2005
This is a guide for people who are acting for themselves in family law proceedings or considering doing so, or would like to know more about what is involved in family law proceedings. It is not a “do-it-yourself” or intended to give legal advice. Each case is different and the law and procedures are always changing. People should seek their own legal advice if they wish to do so.
Is it common to represent yourself?
It is very common and becoming more so. I believe recent estimates are that in approximately 50% of cases, at least one of the parties is acting for themselves in family law proceedings. There seems to be a number of reasons for this. More people are taking family law proceedings and the procedures are becoming more user friendly. Legal Aid is harder to get and usually restricted to those on welfare benefits with serious parenting issues. There are more resources and information available to people to help them and a greater willingness in the community to do so.
However, the overriding reason is people simply cannot afford legal representation in seriously contested proceedings.
Should you represent yourself?
It is usually wise to get such assistance from lawyers as is available. However, it really depends on what you can afford and what you have at stake. Children are a most precious commodity and the care and the welfare of your own children is something that should not be taken lightly. People also have a great deal at stake in respect of financial property settlement and financial issues. However, no one can afford a family law case which becomes an extravaganza. The days of major litigation and family law proceedings are coming to an end. However, it is still here and ordinary people with modest assets and relatively simple issues who get involved in the Family Court can still find themselves at the end facing a 2, 3-5 day hearing. If they are represented all the way by lawyers, the costs to them can be $20,50, 100,000 each. It is often crazy to spend that sort of money. However, on the other hand, if you are faced with losing your children, or your livelihood and most of your property, you have no option but to defend yourself. Most people representing themselves are obliged to do so.
What assistance can you obtain from lawyers?
Lawyers can still be of enormous assistance, even if you are going to mainly represent yourself. There seem to be 2 main strands of lawyers. One strand is those who wish to stick to the old system where they take control of the matter and run the case in a traditional way through the court and try to seek a victory. They consider themselves great advocates and litigators. They can be very skilled and very successful in what they do. However, there is a different strand of lawyers developing. These are the lawyers who are happy to help you in whatever way you wish or can afford. They are happy to give you coaching and guidance to run your own case. You can set a budget as to how much legal advice and assistance you can afford and they will give you good value for your dollar. They can help you be well prepared and confident and achieve success. They only want to be involved to the extent that it is effective and affordable.
Should you take court action?
The simple answer to that is “only as a last resort”. Taking court proceedings is always risky. It involves an enormous commitment of time, emotion and effort. It can have unforeseen adverse consequences. It creates long-lasting bitterness between former partners and others. It can be extremely detrimental to the welfare of children. It is said that children can cope with parents arguing about property in the court but find it extremely difficult to cope with parents arguing about them. The effect can be a lasting legacy of bitterness. Court proceedings can involve opening “a can of worms”. You may wish to restrict the argument to issues of say children’s issues but find it expands into difficult disputes concerning property and child support. You can sometimes get a perverse decision and it is extremely difficult to reverse an appeal. Above all, proceedings can get out of control and end up costing an unimaginable heap of money.
However, on the other hand, you should not necessarily afraid of the Court. They are there to help you. They are mostly staffed by extremely competent and helpful Judges, Registrars, and Magistrates who want to assist you. The court proceedings can be effective in identifying and resolving the issues without necessarily reaching a hearing. Only about 5-10% of matters commenced in court go all the way through to a final hearing. A great deal of pressure is bought to assist people to a resolution prior to a hearing.
Alternative dispute resolution
Of course it is far better to resolve disputes without having to go to court. There is now a great industry of mediation and conciliation. This involves various counsellors, mediators and lawyers who want to assist you in resolving disputes. The great majority of lawyers’ time these days is taken up in negotiation and mediation of disputes.
Once an agreement is reached, documents can be drawn up to create a binding and final solution. An agreement can be reached at any stage of the marriage, both prior to the marriage, in the middle of a happy marriage, or following a separation. Similarly, once court proceedings are commenced, the matter can be resolved at any time by coming to an agreement and filing the agreement at court, or otherwise having Consent orders made.
However, it is often not possible to reach an agreement. There is an intractable dispute or someone is unreasonable. You face the choice of giving in to bullying, greed and injustice or being assertive of the rights and entitlements of you and your children. We are fortunate to have the court system we have. It is getting better all the time.
This guide is written in January 2005 from my experience in the Sydney region. The family law systems is mostly a national system. However, variations do occur between different areas and particularly between different court. This guide is mainly directed towards the 2 major types of disputes which are those involving parenting issues and the care of children, and those involving property settlement. There are of course a variety of different issues which can arise including relating to child support, spousal maintenance and disputes between de facto partners. There is great variety in the manner and method in which people can have disputes.
Sometimes there are urgent compelling reasons to start proceedings. To hesitate can lead to a great disadvantage to you and your children.
There are 3 options. The Local Courts, convened by magistrates, can hear family law matters. However, they are generally not specialised family courts. There are some exceptions, in particularly, the Local Court in St James’s Centre, Elizabeth Street, Sydney run by Magistrate Mitchell which is a specialised children’s court and provides an excellent service. One major disadvantage of local courts is that there is a right of re-hearing in the Family Court.
The 2 main specialised courts are the Family Court and the Federal Magistrates Court. The Family Court has Registries at Sydney and Parramatta. It handles major, more serious family law disputes.
A second specialised family court was set up in 2000 being the Federal Magistrates Court. At present it is only available at Parramatta. It was set up with the intention of providing a faster, simpler, and cheaper method of determining disputes. It currently only handles disputes of less than 2 day duration. There are advantages and disadvantages of the Federal Magistrates Court against the Family Court. The advantages of the Federal Magistrates Court includes that the magistrate you first see is usually the one who hears your whole case. The time between filing and final hearing is currently somewhat shorter (perhaps 6-9 months). Any court which holds itself out as being simpler, quicker and cheaper has much to commend itself to people trying to represent themselves. It would generally be the court of choice. The system and rules in the Family Court can be a lot more complex. The only major advantage of the Family Court is that it currently offers the Children’s Cases Program mentioned below which has a lot to commend it as a method of resolving children’s disputes where the parties agree to enter the program.
Sources of information and guidance
Apart from lawyers, there are a number of other places from where you can get valuable information. There are some excellent community organisations. Ross Fletcher at the Father’s Support Service at Parramatta runs excellent programs for men following separation. The Family Law Reform Association meets on the first Monday of the month at the Bankstown Services Club and is a great organisation. Barry Williams, of the Lone Father’s Association, emanating from Canberra and spread throughout Australia has been a leading organisation for family law reform since the 1970s. I am an honorary solicitor for all these organisations and have seen that they do provide benefit for the community. There are other free seminars and sources of information. Centacare, Unifam and Relationships Australia are community mediation organisation which also provide excellent counselling and mediation information.
Another marvellous source of information and a real must for someone involved in family court proceedings is the internet. The websites of the Family Court (www.familycourt.gov.au) and of the Federal Magistrates Court (www.fmc.gov.au) and of the Child Support Agency (www.csa.gov.au) are marvellous sources of information. Further reference is made to them in this paper.
The law is contained in the Family Law Act and Rules and published cases. These are all obtainable on the websites.
The most important sections of the Family Law Act dealing with children are contained in Section 65E, Section 60B and Section 68F(2). These provide that in children’s matters, the paramount consideration is the best interests of the child. The court takes in account the right of the child to know and be cared for by both parents, have regular contact with parents and other persons and other principles. In determining what is the child’s best interest, there are various things to be taken into account, including the children’s wishes, nature of relationship, responsibility and capacity for parenting and any issues of violence or abuse.
The major section in respect of property is Section 79 and 75(2). In respect of property settlement, The Court exercises a 3-step process. First, the assets are determined and valued. Secondly, the court considers the contributions, both financial and non-financial, and by way of homemaker and parent. Thirdly, the Court looks forwards and considers whether any adjustment should be made on account of the future needs of the parties, in particular if there is a disparity in the income and earning capacities, and whether one party has the primary care of the children. There are a large number of decided cases which are available on the websites (including www.austlii.edu.au). The best source of simple cases which can provide tremendous guidance is on the Federal Magistrates Court website. You can go to the subject index and find major decided cases. There set out in simple terms are the orders made in the case and then the facts and how the magistrate cam e to the decision. If, for example, a grandparent wanted to see how cases have been decided for grandparents, they can go to the section on grandparents and find cases similar to their situation which will provide great guidance has to how the court is likely to decide their case.
The Family Court website provides a terrific guide in its step by step approach to the Family Court. There, it sets out what happens to the filing of an Application through to the final hearing. The procedure in the Federal Magistrates Court is quite similar. The procedures will be discussed below.
There are filing fees whether you are filing an application or a response, which is currently $178 in the Family Court and $115 in the Federal Magistrates Court. There is usually one other fee, which is payable by the Applicant, when the matter is set down for final hearing.
You generally need to file a photocopy of the marriage certificate, or if you were not married a photocopy of the child’s birth certificate. The forms used in the Local Court, Federal Magistrates Court and Family Court are contained on the websites. Otherwise, they are obtainable from the registries of the court. They can be typed out on computers. Usually, you can fill them in in handwriting, if necessary.
One of the best things you can do if you are involved or considering getting involved in family law proceedings is to attend at the Court. It is generally good to go there early. You can learn an awful lot about interim proceedings and sit in the duty court where the short and urgent matters are heard. In respect of final hearings, you can sometimes sit in on those proceedings. You have a right to be in Court listening to cases, although you can be quite conspicuous when you are the only person there. If you can find a case somewhat similar to your issues, it can be a tremendous guide, and even get to know some of the people involved, it can be a tremendous guide to what happens and the thinking of the judges.
These set out the procedure at Court and what forms to use and what procedures are available. The rules are quite clear and helpful if you go through and find the right section.
Starting an Application
To start an Application, you generally file a Form 1 Application. This is fairly straightforward. You need to specify the final orders you seek. There is a particular way of expressing orders. You can get excellent guidance from the cases in the Federal Magistrates Court and the Federal Magistrates Court website also has a list of frequently used orders which is very helpful. There you set out what your proposals are for the care of the children and perhaps the contact of the other party, or what property orders you seek in respect of what property you wish to keep and what should be sold and divided according to certain percentages. There is a great variety of possible orders and ways of expressing them and careful thought needs to be given to this. You generally should seek realistic orders and specify what you really want rather than make “ambit” claims although there is nothing wrong with seeking a little more than what you are prepared to settle for.
If you are seeking property orders, you also need to file a Form 13 Financial Statement. This is a detailed statement of income, expenses, assets, superannuation and debts. There is helpful do-it-yourself guide available on the family court website in respect of filing out this form.
If you are seeking an interim or urgent order, you need to fill out a Form 2 Application in the Case. This is also a simple form requiring certain basic information and then to specify the orders you seek.
In support of the interim orders, you need to file an Affidavit form. This is your story or the evidence you bring forward in support of your claim. More is said about affidavits below.
If you are defending a claim brought by the other party, you need to file a Form 1A Response specifying what orders you agree to, what orders you disagree to and the alternative orders you seek. You also need to file a Financial Statement. In respect of interim orders, you file a Response to an Application in a Case and your own Affidavit.
There is a standard affidavit in respect of children’s matters. This is a blank form and available on the website. It is somewhat helpful and somewhat difficult. The good thing is that it directs your attention to a lot of relevant issues. The bad thing is that it does not really allow you to tell your story and after reading that affidavit, the Judge may know very little about what you are and what you want. I usually annex a further statement setting out background facts and attach it to the blank affidavit.
The forms in the Federal Magistrates Court are somewhat different. You file one Application, being a Form 1. In it you specify the final orders you want but also the interim or urgent orders you are seeking. In the Federal Magistrates Court, you file an initial affidavit in all cases at the beginning. (In the Family Court, you do not file your final affidavits until well down the track, near the final hearing). The Financial Statement form used is the same.
You swear documents before a solicitor or a JP
You attend at the Court to file the documents at the Court Registry or you can post them in. They keep the original and you get 2 copies with the court stamp on them back. One of these copies you need to serve on the other side. If they are already represented and have filed documents in the proceedings, you can generally just post it to their address for service or the address of their solicitor. If you are starting the proceedings, you need to personally serve them. This can be done by any person other than you. If there is going to be any difficulty in showing they have received the documents, you should do so by a process server. Names of process servers can be obtained in the Yellow Pages and they are charged a fee. They know how to find and properly serve the other side and then provide you with affidavits of service to file at the Court so you can formally prove service if necessary.
The first appearance
You usually get a date for first appearance in 6 weeks’ time in both the Family Court and Federal Magistrates Court. In the Family Court, this is either a Case Assessment Conference or Directions Hearing. The Case Assessment Conferences are conducted in the Registrar’s office and is really an initial attempt at mediation. They are now sometimes conducted in the Counsellors’ offices. If agreement is not reached, orders are made for the further conduct of the matter. Directions Hearings are more formal in which you appear in a closed court, briefly explain what has happened to the Registrar who will then make orders for the further conduct of the matter.
In the Federal Magistrates Court and Family Court, orders made for counselling usually prior to any interim hearing of children’s issues. This can be very helpful. It is compulsory to attend and you can obtain the assistance of an experienced Family Court Counsellor who will try to help you to a resolution. It is totally confidentially. It is usually done prior to the first appearance in the Federal Magistrates Court but usually now after the first Case Assessment Conference in the Family Court.
It is often necessary to have an interim hearing. This occasionally occurs in financial matters, such as orders to preserve property pending a hearing. Sometimes issues such as who has a right to occupy the home are heard as an interim issue.
However, the major interim issue concerns what temporary arrangements should be made for the care of the children; who they live with and what contact they have with the other parent, pending the final hearing.
Interim hearings are terribly important. The orders made in an interim hearing are often very similar to the final orders. They establish a pattern of care which can be very hard to change.
The law in respect of interim arrangements for the care of the children is set out in the leading case of Cowling. You can find it at one of the places mentioned above. The basic principle is that if there is a stable arrangement in place, the court will preserve it except if there are compelling reasons including issues as to the children’s safety which require the stable arrangement to be changed. If there is not a stable arrangements and the separation has been temporary, the court will decide what time the child spends with each parent.
Conduct of interim hearing
In the Family Court interim are usually listed before the Senior Registrar, currently Registrar Messner. In the Federal Magistrates Court, they are heard by one of the Federal Magistrates. You wait your turn and when the time comes, the Registrar or Magistrates want to know basically what it is about, and what documents you rely on. They then read the documents and listen to submissions from both parties and make their decisions.
The affidavits you use in the interim hearing may be very similar to the affidavits you use at the end but are usually shorter and simpler. There is a major difference in that you are allowed to rely on hearsay statements in interim proceedings. That is, you can quote other people other than the other party, as long as you state who it was who said what and where and use inverted commas.
Children’s Cases Program
There is a new program being offered as a pilot project. However, it seems to have been a success and have the support of the court and a lot of the profession. The reason for this is that it is highly practical and successful. At the moment it requires the consent of both parties to enter the Children’s Cases Program. It is basically an expedited way of hearing children’s disputes. The Judge comes in from the beginning and speaks directly to the parties and it is the Judge who determines how the case is run and what evidence is needed, not the parties or their legal representatives. It is closer to the European “inquisitorial” legal system rather than our traditional “adversarial system”, in which it is the lawyers who determine what evidence is adduced and how the case is run. It generally has been very effective and had been quick and simple and seems to commend itself to self-represented persons. There is a lot of information about it on the family court website and it is worth considering. It remains to be seen but it is likely this will be a way in which all future children’s cases are heard and in the future, probably financial cases as well.
This is the new procedure prescribed by the family law rules in the Family Court. It requires parties to go to some considerable trouble and attend mediation and disclose documents and make offers of settlement and make every effort to resolve the matter prior to issuing proceedings. It is a good system and has cut down a lot of the litigation in the Family Court. You can see the pamphlets in respect of your obligation to follow pre-action procedures set out on the website.
The next step in a financial matter is that there must be a conciliation conference. This is a formal settlement conference convened by a Registrar. The procedure is very similar in the Family Court and Federal Magistrates Court. You need to have exchanged relevant documents and obtain valuations and market appraisals of assets, the value of which is in dispute. In the Family Court, you file a Case Summary document. You attend on the day and the Registrar usually speaks to both parties together and gives his/her opinion about the case and tries to convince you to come to a settlement. They are very successful in resolving approximately half of the matters that come before the Registrars. If agreement is reached, terms can be drawn up straightaway and the matter resolved.
Conciliation Conference to hearing
The procedure in the Family Court is, if the Conciliation Conference fails, a Trial Notice is issued specifying various further steps to be taken, when final affidavits are filed and a date for a Pre-Trial Conference. At the Pre-Trial Conference, a final hearing date is allocated. If the documents are not filed, the matter falls into a defaulters’ list and you have to explain your default to a Judge. At the Pre-Trial Conference, a final hearing date is allocated. There are a number of other requirements including the filing of formal offers and filing of undertakings that you have disclosed all relevant documents.
After the Pre-Trial Conference, there are a number of additional documents to be filed including a Joint Case Summary.
In the Federal Magistrates Court, the system is somewhat different as a final hearing date is allocated at the first return date rather than at the Conciliation Conference date. Also orders are made at the first return date for the fling of updated documents prior to the hearing. You can see the system is a lot simpler and probably better.
Having effective Affidavits is the key to succeeding in Family Court proceedings. It is where you set out your evidence, tell your story and produce your relevant documents in order to prove your case.
The Final Hearing
A final hearing is similar to an interim hearing. The major difference is that there is cross-examination. Both parties cross-examine each other and witnesses need to turn up and be cross-examined.
You can see that being involved in court proceedings is not something to be taken lightly. It is quite a complex procedure, and you need to put a great deal of time and effort into it if you are going to do it effectively. You have a great deal at stake. You have to expect that the other party is going to be difficult and not tell the truth and you need to protect yourself by being able to prove what you say and prove it should be preferred to what the other party and his/her witnesses are saying.