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Self-Represented Litigants - Tackling the Challenge

In a recent dismissed appeal to the Full Court of the Family Court, a father, who was self-represented, walked away with the no contact orders of the 1st instance Judge.

While I do not wish to comment on the facts of the case itself, what I do want to highlight, is the very real disparity between implied knowledge of the Courts in terms of SRL's understanding and SRL's actual knowledge and understanding. In this case the Court points out they tried to assist the father with his understanding of case law, but was it really enough? With the ever increasing number of SRL's in Family Law matters, should SRL's really be expected to continue to 'adjust' to the system or is it about time the system did?

Below I provide 2 quotes from that judgement and also a paper written by Deputy Chief Justice Faulks written in 2013 about challenges for the system in terms of SRL's.

Extract from case…
65. At various parts of his summary of argument, and in oral argument, the father referred to the “flawed and erroneous” reliance by the trial judge on Cannon & Acres. The misunderstanding by the father of the way in which legal authorities are used extended also to other cases that were mentioned, such as M v M (1988) 166 CLR 69. The father’s references to case law made it clear to us that he has no understanding (despite our attempts to explain) about the fact that references to previous cases were related to the principles arising from those cases rather than the facts. It emerged in discussion with the father that he held an irrefutable conviction that the cases needed to be factually aligned with the present case, otherwise use of them was demonstrably flawed. In essence, he believed that the cases that his Honour raised involved facts which were not relevant to this case and therefore they showed two issues. The first being that the trial judge was biased and the second being that there had been an error in the trial judge’s decision making. In particular, he asserted that Cannon & Acres was a case that was factually about sexual abuse and this case was not. Therefore, he submitted his Honour had erroneously taken into account principles arising in a case which was very different and should not have been used. The father made the same submission in relation to principles arising from M v M because that case, again, was about sexual abuse and this case was not.

66. It is thus clear that the father’s complaints both about pre-judgment and errors by the use of inappropriate authorities stem from a misunderstanding of the use of precedent and cited authorities. It is clear therefore that this argument could not possibly found an assertion of bias or pre-judgment, nor error in the application of the law.


Self-Represented Litigants - Tackling the Challenge
 

Last edit: by SWAMBO


Any opinions expressed herein are strictly for informational purposes and are never to be taken as legal advice.
Interesting read, the paper by Deputy Chief Justice Faulks, and not too old either.

Given that Legal Aid funding is being cut left, right and centre, and SRLs are proliferating, especially in family law matters, it does make sense for the system to change, not the participants. The LAT seems to me, to be the way to go, but I would go one step further, and suggest that the LAT is there for SRLs only, no lawyers allowed. Then this really would be a level playing field. The Judge would advise how they want things to happen, and there really would be no excuses for not having done as asked.
I have a question. Is LAT only for family court cases or is it also valid for federal court cases? If its only in the Family Court can you ask to be transferred from the Federal Court to facilitate LAT?

Nothing i say should be taken as legal advice. I am not a Lawyer. If i help you it is of your own free choice to listen to what i say or not. I do not create documents for you. I do not represent you.... Purple Monkey Dishwasher
Boots said
The LAT seems to me, to be the way to go, but I would go one step further, and suggest that the LAT is there for SRLs only, no lawyers allowed. Then this really would be a level playing field. The Judge would advise how they want things to happen, and there really would be no excuses for not having done as asked.

I agree that the next step up would be for LAT to be a no lawyer, wholly Judge run, directed, managed and decided process.

I would also like to see a psychologist sitting in the back of the Court on hearing days (observational only) and for litigants and children to visit with the psychologist on several occasions between proceedings. I view the psychologists purpose, as well as them picking up on any possible psychological concerns of a parent/s (and raising this with the Judge so further directions could be made), as assisting parents with gaining a better/even better insight into their own children's needs and in how to co-parent more effectively to meet those needs.

The psychologist who would be known to the children through these visits, could also facilitate a meeting between the Judge and the children (informal, get to know you, this is who I'm deciding for type of meeting) and could even ascertain whether older teens, 16 years and over?, would like to chat with the Judge further.  Or even sit in on the hearings?

Legal Aid money that is usually allocated for ICL appointments could instead be allocated to funding the psychologist.


The Wolf said
I have a question. Is LAT only for family court cases or is it also valid for federal court cases? If its only in the Family Court can you ask to be transferred from the Federal Court to facilitate LAT?

Only Family Court Wolf.  In terms of transfer just for LAT, I wouldn't like your chances. Even cases that fall under one of the criteria categories for transfer can sometimes remain in the FCC.  Depending on how busy the Family Court are, it can sometimes be a case of 'most serious/complex' and/or 'resources permitting'.

You're more likely to be transferred from the Family Court to the FCC.

Any opinions expressed herein are strictly for informational purposes and are never to be taken as legal advice.
SWAMBO said
Only Family Court Wolf.  In terms of transfer just for LAT I wouldn't like your chances. 
I sort of knew this :-(  My 2007-9 case was LAT
 

Nothing i say should be taken as legal advice. I am not a Lawyer. If i help you it is of your own free choice to listen to what i say or not. I do not create documents for you. I do not represent you.... Purple Monkey Dishwasher
Ah SWAMBO, my thoughts exactly on the psychologists as well. Rather than those family report writers who tend to spend a very limited amount of time with a family and form an opinion of an environment of artificiality. If the LAT and visits were run over a few days, then definitely there then is an opportunity for folks to be seen for what they are. No one should be able to play a charade for an extended period of time. Maybe there could be some automatic psychological assessments on all litigants (and their respective partners) as well. Partners do sometimes have quite an impact on children, either positively or negatively.

I would also like to see that working arrangements are NOT considered as too relevant a factor. Just because someone stays at home to raise children, or stays at home because their new partner works, should not be an automatic reason for allowing a child to stay the majority of the time with that parent. There are plenty of unseparated families out there, where both parents work. Having worked in the employment industry, I have seen quite a few second generation professional work avoiders. And yes, I know, it is a generalisation, but I have seen the children of parents who have chosen to have multiple children in order to stay out of the workforce, go on to have children themselves in order to stay out of the workforce. Such a shame and a waste. But that is just my opinion.
I think you're right on the money Boots, in saying that plenty of non separated parents operate very differently and do not suffer the same amount of scrutiny that separated parents do sometimes.  I also agree that there shouldn't be different standards, expectations or preferences on care of children. (I would have quoted you but for some reason the site is not offering me it as a quick option).

Everyone has their own ideas though don't they. Sometimes fixed.  

Take for example even the judgement I quoted above.  I didn't go into the facts, however, I'll place bets there were several different takes on it.  Including (not limited to)…  
1. Yep…another father just got screwed
2. Yep…another father got what they deserved
3. I  can't understand the paragraphs of the judgement (understandable!!!!!)
4. Why the hell were they using a case that had no relevance? i.e. sexual abuse when there wasn't any in the fathers case (again understandable!!!!!)
5. Yep…this is another case where a litigant in person, due to them not understanding the laws (or extension thereof…precedent aka case law)  could ever win. Especially in an appeal (Yep!!!)

How many litigants really understand case law????  This father was not the first litigant and will not be the last. Particularly now that the Family/FC Courts are bringing in cross-vested jurisdiction, more frequently, from the Federal Court.  NOT Federal Circuit Court for any newbie out there.  

I agree with the Deputy CJ that everyone should be able to understand the language.  If judgements themselves (case law) are written in complex language, how can the everyday person understand it or fight it? How can they match it or win?

Underlying message…change needed!!

Any opinions expressed herein are strictly for informational purposes and are never to be taken as legal advice.
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