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Some Do's and Don'ts for SRLs

A listing of several issues and details to be considered in preparing for a court matter and appearance.

NB: This information is from an American source and may not be directly applicable in Australian family courts.  However, it may be useful as a source of information, of the types of issues and details to consider, in preparing for a court matter and appearance.

Some editing and additions have been made to the original information (some of which are marked by blue text).

Do's And Don'ts For Pro Se Litigants In Divorce And Child Custody Cases: A Judge's Perspective
By Hon. Michael Town, Hon. Linda Dakis, Hon. Stephen Herrell, Hon. Scott Jordan


A. Judge's Role

Do understand that the judge's role is to be fair, listen carefully to the facts, weigh the evidence, and follow the law in making a timely decision.  The judge cannot be an advocate for you or treat you differently from the opposing party and lawyer.  The judge cannot give you extra consideration because you don't have a lawyer.

B. Settlement

Do agree to settle if it is a reasonable, safe, and child-centered solution to issues in the case. Do give it much thought.  Once a contested hearing begins, it is in the judge's hands and may no longer be a decision you can make.

C. Civility

Do expect to be treated with patience, dignity, and courtesy by the judge, court staff, and attorneys.  Everyone understands that this proceeding is an emotional time for you. However, do make every effort to be patient and courteous with the judge and court personnel.

D. Courtroom Etiquette

Do be early for your hearing, and dress appropriately for court.  Probably the most important advice is do be prepared [and don't make assumptions].  Do understand that the judge will consider all factors, such as tardiness, lack of preparation, your demeanour, and overall appearance.

E. Balance

Do expect that the judge will hear from you and your witnesses and from the other party and their witnesses.  Do understand that every person and family has strengths and weaknesses.  Explain any problems you might have had before the other side brings them out.  Don't be shocked or amazed if incidents you thought were minor are emphasized by the other side.

F. Brevity

Do be as brief as possible.  Do not expect to spend hours or days explaining your case. This is a matter of preparation and common sense.  Do have a friend, advocate, or lawyer help you prepare and practice your testimony.  The judge will place great value on careful preparation and time management.

G. Priorities

Do know what you're asking for.  Think about and write down what you want in the judge's decision.  Make a list of the reasons that custody of your child or children should be with you [or for the amount of time you want].  If you feel there should be restrictions on contact, write down specifically what you feel is necessary and why, and stick to it.  Do the same with any other issues the judge will decide (such as division of property, debts, etc.) .  Several solid reasons are more convincing than many trivial or petty reasons.  Do not attack the other side.  Do speak with the judge and be prepared to tell the judge as specifically as possible what you are asking for.

H. Acknowledgement

Do concede or acknowledge the positive qualities or facts of the other.  People fall in love, marry, have children, and break apart.  It is difficult to believe that the opposing party has no redeeming qualities.

I. Prepare, Prepare, Prepare

Do the work needed to fill out the forms, applications and filings, financial statements, and other documents required by the court.  Do not expect to get by on your perception of what happened.  You will need solid preparation, careful thought, and straightforward delivery.

J. Respond

Do respond to written documents.  If you receive written documents, you may lose by default if you do not respond to them.  Find someone who can advise you about whether you have to respond and how much time you have to do so.  If you can't find someone to advise you, go to the court and ask an employee there.  Alternatively, you might call your local court or read the courts' websites, .  [Additionally, you might also seek information, from the Family Relationship Advice Line online or by calling 1800 050 321.]

K. Safety Planning

Do engage in safety planning for yourself and your children.  Even when there is a history of domestic violence, it is likely that the opposing party will receive some visitation with the children. Develop a safety plan to assure safe exchanges and so your children know what to do if there is a problem during a visit.

L. Retain Legal Counsel

Do retain a lawyer if it is at all possible.  There are good and sympathetic lawyers out there, many of whom will accept payments or make other fee arrangements.  No matter how much the courts try to be fair and accessible to unrepresented litigants, it is still better to have counsel if possible.

K.  Focus on a Realistic and Workable Plan/Solution

Do ensure that what you are proposing and seeking is realistic and workable for your child, for you and for your ex.  Do not focus on conflict between you and your ex. Instead focus on your child and on your realistic and workable parenting plan.

M. Keep the Court Informed

Do keep the court informed of necessary details such as your current contact address.   This is so the court will be able to contact you in future should the need arise.


A. Sympathy

Don't assume you have a good case because others have told you so.  Don't assume that the judge will agree or give you extra consideration or sympathy. The role of the court is different than that of a counselling or advocacy agency.  A courtroom is a neutral forum.  You begin on a level playing field with the other party and must show the judge objective evidence and testimony that your position is the valid one.  A courtroom is a forum to reach a reasonable result after the judge considers the evidence and evaluates the testimony.

B. Present the Facts

Don't assume that the judge knows anything about your case.  The judge's decision will be only as good as the information it is based upon.  Assume that the judge knows only what is presented in court.  If you feel a fact is important, tell it to the judge.  In preparing for a court hearing, think about the important facts you want to present, then decide what evidence or witnesses are necessary to present those facts effectively to the judge.  [NB In Australian family courts "telling the judge" is done via affidavit.  Write it down - "tell it to the piece of paper" - in the correct form(at) and then submit it to the court.]

C. Conflict

Don't focus on conflict between you and your ex.  Instead focus on your child and on your realistic and workable parenting plan.

Sourced from an overseas (USA) guide:
Pages 31-33
Managing Your Divorce: A Guide for Battered Women, 1998
National Council of Juvenile and Family Court Judges
That translates very generically to the Australian system, except that FMs and Judges are meant to be more lenient and helpful to SRL. There are also guidelines for solicitors from the Law Society, advising on human ways to treat SRLs. (doesn't mean it always happens….

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

Self Representation

The following information, about Self Representation, is from the book The Father's Guide to Winning the Divorce War and may be of interest to some.
Aristotle said
Of the modes of persuasion furnished by the spoken word there are three kinds:

The first kind depends on the personal character of the speaker;

The second on putting the audience into a certain frame of mind; and

The third on the proof, provided by the words of the speech itself.
John McGuinness said
Self Representation
You can go to the Family Court and represent yourself. Many people represent themselves in the Family Court because they see some advantage in doing so, or because they are not eligible for legal aid and can't afford to pay the thousands of dollars required for a barrister or solicitor.
You should think about representing yourself if:
- You don't feel intimidated by the courtroom or legal procedure.

- You are prepared to put the time in to prepare and research your Family Court case.
- There is to be a credibility battle between yourself and your former partner.

- You wish to speak strongly and directly to the magistrate or judge.
It is often possible to put a more powerful argument directly to the court when you represent yourself. You can speak directly to the magistrate or judge, question witnesses yourself, and address the court at the end on what all the evidence means.  
You must, however, be prepared to do some serious work to make up in research and preparation what you lack in courtroom experience. Rule of thumb = Preparation means everything.
Immediately, you will need to make some decisions about:

- What your goals are. The first thing you have to do is to be clear in your own mind what it is you want out of the divorce. Is it property, your children, joint residence, reasonable visitation (be very specific) - just what do you want?

- What evidence you must gather or collect. (See Case Preparation) The attitude you must take is this: Expect her to lie. Expect them to believe her. Expect no fairness. Expect to need mountains of evidence to prove your case.

- What other research you need to do. (Legal Research and Psych/Social Research)
You need to set time aside to analyse the case and any allegations made against you, to collect statements and other evidence and to prepare the basics of your argument to the court.
Find a lawyer that is willing to coach you when you get stuck. A lot of lawyers may offer "how to" advice, but, of course, not without a fee.  Go to your local Community Legal Centre and organise a lawyer from there.  
A lawyer's coaching will come in handy for areas where you need help, such as understanding due process and interpretation of the statute and case laws.

IMPORTANT: You must have a lawyer (barrister or solicitor) 'taking instructions' from you in order to have your journal protected under lawyer/client privilege. You should inform the judge at trial that you are representing yourself, but that you have a solicitor/barrister 'coaching/mentoring' you.
A magistrate or judge has a limited legal duty to assist an unrepresented person throughout a hearing or trial.
He or she should tell you, for instance, that you now have a right to ask questions of a witness, or you may like to object to a piece of evidence.
However, the magistrate or judge will not tell you how to prepare your questions or your objections, or how to conduct your case. (See for example Re F: Litigants in person guidelines [2001 FLC 93-072]. This is a case decided by the full court of the Family Court in 2001. FLC means Family Law Court).
In preparing your case, if not arguing it, you need to stand  back from your emotional connection to the subject, and assess the strengths and weaknesses of both sides, as if it were a war (Read Sun Tzu, Art of War for great strategy and tactics). Then you can take some advice and decide what tactics to employ.
There are some advantages to self-representation. If you have a dispute about the facts with a witness, you might be in a better position to present your view both in cross-examining and challenging the witness, as well as giving evidence yourself.
When questioning a witness about events in which you were involved, you are in control of the issues raised, and can raise argumentative suggestions, which are not possible if and when you give evidence. In effect you can 'give evidence' twice when you represent yourself.

It is also valuable to be able to speak directly to the magistrate or judge, rather than being regarded as a silent third party. Making a more human connection with your magistrate or judge may be important in overcoming prejudice and allowing them to treat you humanely.
When representing yourself, you may be able to have an adviser sit next to you, quietly giving you advice. This person is known in the legal system as a 'McKenzie Adviser' (Friend), from the case of McKenzie v McKenzie [1970, 3 All ER 1034]. (Note: This is an English case, but the term is also [unofficially] used in Australia.) Your Adviser cannot, however, act as an advocate for you, unless he or she is a legal practitioner.
The right to an adviser has not always been observed in Australia, and some courts are against it. In the Family Court you can only have a McKenzie Adviser (Friend) with leave from the Court. If you come across a magistrate or judge who is hostile to your request, you can argue your entitlement on the grounds that:

- You are untrained in court procedure;

- You cannot afford a lawyer; and

- In the interests of justice you should be allowed assistance from your adviser.
Mention the High Court decision of Dietrich [1992, 109 ALR 385], which supports the right to legal representation 'where the interests of justice so require'.
If you appear unrepresented, the magistrate or judge has a duty to tell you your rights, but not how to exercise them including your right to object to evidence and cross-examine witnesses. (Again see Re F: Litigants in person guidelines [2001, FLC 93-072].)

Here are a few more tips for men who make this choice, or who are forced into the situation because they run out of money.

- Try to contact people who have represented themselves successfully.
- Do your homework - know the law, both statute and common law. This includes the Court Rules and Case Management Directions.

- If the opposition lawyer gets you cornered with legal tricks appeal to the judge for natural justice or simply a fair go. It can work.

- Most important - remember who is in charge. If you are starting to annoy the judge, back off and try another tack. You must be assertive without being aggressive.

- If you think you might blow up or lose emotional control, get a lawyer.

- If  you  have  done  your  homework,  and  present yourself well, most judges will give you a fair go.
Excerpted from the Australian book:
The Father's Guide to Winning the Divorce War
Self Representation, Pages 99-103, 2004/2005

Affidavits ?

In my book, well said Matrix.

Do you have an guidelines on writing affidavits? The guys (non-gender) and I have some trouble writing these, we tend to be too passive, wordy and emotional.

I was trying to put together a list of information a judge needs to see in the affidavit for Final Trial for a few people with physical examples for people to follow like.

The home you/I live in is a ___ bedroom brick single story in ___ area with a big/average/ small front and backyard (fenced/not fenced), for the children to safely play in…

Answer questions like:

- Who lives there?

- How many bedrooms?

- Can they have friends sleep over?

- Are school friends neighbours of your or close by?

- How can you tend to the daily needs of your children?

- What evidence of this like: Certificates of Courses completed, statements of common practice by you of ability to cook, wash, clean house (not in comparison to the Ex).

- Do the children have shared bedrooms and with whom our own?

- What play areas and how big are these areas?

- How safe are these areas for children? School work area; desks, computer, in main room or bedrooms, etc.

- What supervision is available and when, when you are not available to supervise?

- Travel time from school to your home, your home to other parents?

Your skills seem to be better than my and I am away again for at least a week.

This guidance may be available to the SRL members but I see a need for it in the general area where it is more easily located for all to use.
That's very good down to earth advice matrix.

Most things would never of crossed my mind.
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