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Deitrich to support a McKenzie Friend argument?

A McKenzie friend (see the case of McKenzie V McKenzie ~ McKenzie v McKenzie [1970] 3 All ER 1034) is a lay person who sits beside a self represented litigant (SRL) in Court and acts as an adviser to the SRL by assisting them with note taking and making suggestions.

In limited circumstances (e.g. certain disability of the litigant that would restrict their ability to self represent) a McKenzie friend might be able to advocate for the SRL in Court.  However, there is no guarantee of this and ‘leave of’ (permission of) the Court would need to be granted.

If you are intending to request a McKenzie friend to sit with you at the bench in Court you will need to prepare your arguments prior to the Court date.

Any argument should include your rights to an adviser (not advocate) on the grounds of Natural Justice (i.e. the right to a fair hearing and the rule against bias), not being trained in court procedures (i.e. you have no legal training and are not a lawyer/barrister), that you are not eligible for Legal Aid and you can’t afford legal representation.

Like all of the arguments you will present in Court, you will need to make yourself familiar with the case law (laws established from past cases) to support your arguments.

While the right to an adviser (McKenzie Friend) is not recognised in some Courts in Australia (or by certain Magistrates or Judges), the High Court of Australia in handing down their decision in ‘Deitrich’ (see the case of ‘Dietrich V The Queen’ ~ Deitrich v R [1992] 177 CRL 292) determined that the litigant (who was unrepresented at the time of his trial) had the right to seek legal advice at trial and in denying this right there was a miscarriage of justice which significantly impacted on the outcome of his case.

In layman’s terms, the High Court supported the right to legal representation where the interests of justice so required it.

Deitrich was a criminal case and there is discussion about the right to an adjournment or stay so an unrepresented litigant can seek legal advice.

Would Deitrich be a good case to use to support a McKenzie friend argument in the Family Courts?

 

Enough Case Law in the Family Courts to support the argument

”SammiSez” said
 McKenzie friend (see the case of McKenzie V McKenzie ~ McKenzie v McKenzie [1970] 3 All ER 1034) is a lay person who sits beside a self represented litigant (SRL) in Court and acts as an adviser to the SRL by assisting them with note taking and making suggestions.
The McKenzie case was English not Australian and his ‘friend’ was Ian Hanger an Australian solicitor who was not allowed to practice in the UK.

”SammiSez” said
 In limited circumstances (e.g. certain disability of the litigant that would restrict their ability to self represent) a McKenzie friend might be able to advocate for the SRL in Court.  However, there is no guarantee of this and ‘leave of’ (permission of) the Court would need to be granted.
Be very careful with this, this is verging on a “Next Friend” application which is very different. It is used because someone has a physical or mental impairment and is unable to understand or take a proper part in the proceedings. Trying to use this in child related proceedings is dangerous because you are effectively saying “I cannot parent”


”SammiSez” said
 While the right to an adviser (McKenzie Friend) is not recognized in some Courts in Australia (or by certain Magistrates or Judges)….
It is recognized by the Family Courts
”SammiSez” said
 …. the High Court of Australia in handing down their decision in ‘Deitrich’ (see the case of ‘Dietrich V The Queen’ ~ Deitrich v R [1992] 177 CRL 292) determined that the litigant (who was unrepresented at the time of his trial) ………………………………… Deitrich was a criminal case and there is discussion about the right to an adjournment or stay so an unrepresented litigant can seek legal advice. Would Deitrich be a good case to use to support a McKenzie friend argument in the Family Courts?
No - because there is enough existing case law in the Family Courts to support a request.
I am attaching some of the McKenzie Friend material from the previous site (note this material is yet to be updated before being placed in the Families and the Law section of this new site) There will be some additional supporting case law including a Judgment by the former Chief Justice Alistair Nicolson which supports the use of a McKenzie Friend to “level the playing field a little”.
Note “The level playing field” argument is the most common one
Note also that the Family Court Practice Direction 12A does state a “Support Person” without defining the role. None of us have any idea why CJ Diana Bryant used this particular term considering that the original McKenzie Friend was an Australian solicitor.
In the UK Family Courts the term McKenzie Friend is actually defined in Court Rules with guidelines about what they can and cannot do.

Attachment

Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas. 

Various Terms

The McKenzie Friend cannot speak in court (they cannot advocate) for the SRL except in very special circumstances.

Special circumstances may include having a language problem, having a disability or being of old age to name a few. (Usually if this is the case the person becomes 'A Next Friend' - there are official forms for this)

The decision to allow this to happen lies in the discretion of the judge hearing the case.

Some judges are more accommodating than others. For this reason it is best for the SRL to go ahead and prepare as if going to be alone at the Bar Table in case special permission is not given by the judge.

As regards the right of a McKenzie Friend in Court a McKenzie Friend or in fact ANY friend can sit in Court. As the Family Courts are open hearings unless otherwise specified when there are particular matters that require a closed court. The friend cannot sit at the Bar Table unless they have been approved as a McKenzie Friend.

I agree with Agog and would not use "Deitrich" as precedent. The Criminal jurisdiction is very different. Check for Authorities in the Federal Circuit Court and Family Court that would be better suited.

Other terms to be aware of and consider:

Amicus Curiae
An amicus curiae is a "friend of the court" and is not a party to the proceedings.  It is defined by the Butterworths Concise Australian Legal Dictionary (2nd ed.) at 23 as "a person, usually a barrister who, with the court's permission, may advise the court on a point of law or on a matter of practice". I have heard of Law Students acting as AMICUS CURIAE in Local Court and District Court proceedings.


Case Guardian
FAMILY LAW RULES 2004 - RULE 6.08
interpretation In this Part:
"a manager of the affairs of a party " includes a person who has been appointed, in respect of the party, a trustee or guardian under a Commonwealth, State or Territory law .


Intervener
An intervener is a person who becomes a party to the proceedings with all the benefits and burdens of a party: US Tobacco.
A person accepted as an intervener can appeal, tender evidence and participate fully in all respects of the argument.  An intervener will also be bound by the decision to which it becomes a party (so far as it applies to them) and may have a costs order made against them or in their favour.  In these respects, the role of an intervener is very different to that of an amicus curiae.

Legal Friend
A barrister or solicitor appointed by law to assist people with an intellectual disability in legal proceedings

Litigation Guardian:
  1. A person under a legal incapacity may start or defend a proceeding only by the person`s litigation guardian.
  2. Except if these rules provide otherwise, anything in a proceeding (including a related enforcement proceeding) required or permitted by these rules to be done by a party may, if the party is a person under a legal incapacity, be done only by the party`s litigation guardian.
  3. A party`s litigation guardian who is not a solicitor may act only by a solicitor.
  1. A person may be a litigation guardian of a person under a legal incapacity if the person–
    (a) is not a person under a legal incapacity; and
    (b) has no interest in the proceeding adverse to the interest in the proceeding of the person under a legal incapacity.
  2. If a person is authorised by or under an Act to conduct legal proceedings in the name of or for a person with impaired capacity, the authorised person is, unless the court orders otherwise, entitled to be litigation guardian of the person with impaired capacity in any proceeding to which the authorised person`s authority extends.
  3. A corporation, other than the public trustee or a trustee company under the Trustee Companies Act 1968, may not be a litigation guardian.

 
MacKenzie friend
A person who is not legally represented may, if allowed by the Court, obtain the assistance in court of a MacKenzie friend. This person may give advice, take notes and assist the person in court. The Judge or Magistrate has the discretion whether or not to allow an unrepresented person the assistance of a MacKenzie friend.

Next friend
A person recognised as being able to bring legal proceedings and accept responsibility for these proceeding on behalf of someone who lacks legal capacity eg: the parent of a child. Now known as Litigation Guardian.

I was surprised at how many of these terms were NOT in our Glossary here.
 

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
Thank you to both Agog and Secretary SPCA for your well considered and meaningful responses.    You have both offered a lot of helpful information and clarified my question with regard to McKenzie friends in the Family Courts perfectly.

While you have said that it is yet to be amended, the attachment you have provided Agog is very insightful.  Thank you for attaching it.

Yes you are correct Secretary SPCA the Criminal Jurisdiction is very different.

Agog said
”SammiSez” said
 In limited circumstances (e.g. certain disability of the litigant that would restrict their ability to self represent) a McKenzie friend might be able to advocate for the SRL in Court.  However, there is no guarantee of this and ‘leave of’ (permission of) the Court would need to be granted.
Be very careful with this, this is verging on a “Next Friend” application which is very different. It is used because someone has a physical or mental impairment and is unable to understand or take a proper part in the proceedings.

Trying to use this in child related proceedings is dangerous because you are effectively saying “I cannot parent”

While there would be a number of situations where a parent with disability could parent very well despite requiring assistance from a Next Friend in Family Court proceedings (they could have a severe language disorder or English could be their second language) I think I need to give this more consideration
”SammiSez” said
 While there would be a number of situations where a parent with disability could parent very well despite requiring assistance from a Next Friend in Family Court proceedings (they could have a severe language disorder or English could be their second language) I think I need to give this more consideration
The Courts frequently appoint Interpreters so the ‘second language’ consideration is not on the table. ‘Disability’ is of course open to many interpretations but the inability to understand the proceedings or their consequences does cause a problem in child related proceedings.

It is not uncommon for people to try a range of excuses to get a non-legal to sit with them but the Courts have heard it all before. It is important to remember that English is the only Language used in the Court system.

Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas. 
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