The 2014 Productivity Commission’s Access to Justice Arrangements report found that the number of people self-representing in Australian Courts was increasing.
The Family Court of Australia, in the 2019-20 Annual Report, stated that 22 per cent of litigants were involved in matters where one or both parties did not have legal representation at some point of their proceedings, while 39 per cent of litigants were self-represented at trials.
Source: Family Court of Australia. Annual Report 2019-20
Most people who self-represent in court can’t afford a lawyer and aren’t eligible for legal aid.
The University of Technology Sydney’s research project No Straight Lines indicates that 82 per cent of the self-representation cases include allegations of family violence in family law proceedings.
Self-represented individuals in Australian courts commonly experience more than just one form of violent and abusive behaviour before separation. Women are more likely than men to say that they had experienced coercive control and gaslighting.
As for the nature of the proceedings involving self-representing litigants, the report asserts 65 per cent are related to parenting matters, 10 per cent financial, eight per cent parenting and financial, three per cent contravention, and 14 per cent for other and unclear reasons.
Who helps self-represented individuals in court?
The challenge of self-representing in court is particularly difficult for migrant women who may not understand Australia's legal system and face the language barrier.
InTouch CEO Michal Morris says that while legal issues are incredibly complex and nuanced for migrant women experiencing family violence as it's developed around the Australian culture and norms, it isn’t apparent to them how to get help.
There are different programs across the country run by government bodies, universities, and civil society that assist individuals who self-represent in court. However, these services are fragmented, not easy to find and unable to cater for all the individuals who require support.
Monash University has a Family Law Assistance Program designed to assist self-represented individuals in Family Law litigation. Under the supervision of a qualified and experienced lawyer, students provide knowledge and support about the legal process, prepare court documents, and appear before a registrar or judge.
Self-represented individuals in family law matters can also access the Family Court and Federal Circuit Court websites to learn about the court proceedings, which can be difficult. To fill the gap in legal and social service provision to self-representing individuals, each Australian State and Territory has a Family Advocacy and Support Service (FASS), which combines free legal advice and support at court for self-represented parties affected by family violence.
The 2018 Final report of the Evaluation of the Family Advocacy and Support Services concludes that the FASS should continue and some key services should be enhanced, including continuing to provide a duty lawyer and social services to both victims and alleged perpetrators.
Women’s Legal Service Victoria Acting Chief Executive Officer Helen Matthews says that a large volume of her organisation’s of work is helping women through the work of duty lawyers when appearing before the Melbourne Magistrates Court.
"But using a duty lawyer in court already in itself requires a level of understanding of the justice system."
The role of a duty lawyer varies according to the court, the case, and the service provider. In some matters, they only provide advice, while in others, they appear before the court, assist in negotiation, prepare documents and more.
Some organisations can assist self-represented parties with issues such as bankruptcy, employment law and human rights. Government-founded National Self-Representation Service assists self-represented parties in the Federal Court and Federal Circuit Courts through various organisations, such as LawRight, Legal Aid Western Australia, JusticeNet South Australia and Justice Connect.
However, their help does not extend to Family Law proceedings.
Professor of Law Dr Jeff Giddings says that access to justice and a fair trial in Family Law matters means the right of all parties involved is not to be treated unfairly. One of the many challenges faced by self-representing individuals is court cross-examinations.
Cross-examination is when a witness is asked questions by the other person or lawyer in the case, in order to test the witness' evidence or to try to obtain evidence not provided by the witness.
Understanding the Court system is a challenge in itself. But cross-examination is something not many individuals can deal with, especially if a victim of domestic violence is confronted with the alleged perpetrator.
To avoid this situation, for family violence Court cases, Australia legislated against cross-examination without a lawyer. But what happens when none of the parties can pay for legal representation?
In 2019, Australia amended the Family Law Act 1975 to ban the parties involved from cross-examining one another in matters involving family violence. The legal representative can either be a private lawyer or one funded through the Family Violence and Cross-examination Scheme.
However, the Scheme doesn’t apply to all cases. If the Scheme does not apply, it is up to the courts to provide the appropriate protection and assistance to self-represented victims of family violence when giving evidence. This could be unfair because the assistance varies depending on the court. At the same time, this support can be seen as bias favouring one part.
Sydney University Law Professor Simon Rice says the courts' help to individuals self-representing in court is unable to make the process even, especially if the other party has a lawyer. He says the court process is highly technical.
For example, if a party has a long history of violent offending and/or mental health issues, that information does not automatically go before the court; it has to be subpoenaed, and the material then has to be tendered to the court.
An individual who is not familiar with court proceedings will struggle with things like trial affidavits and subpoenas.
- A subpoena is a document issued by a government body, normally a court, to order a person to provide information that will be used as evidence.
- An affidavit is a written record of someone’s evidence, and it should only include what is relevant to the case.
In trials, subpoenaed material can be a hugely important part of the evidence. However, knowing how to tender the material is complex – it’s not a matter of having the subpoena to produce evidence issued; you then need to serve it, file a notice of request to inspect and then tender the material.
As SBS continues investigating and talking with legal experts at different levels, the team discovers more challenges faced by family violence survivors when navigating Australia’s legal system. Section 102NA of the Family Law Act 1975 adds to the list.
Section 102NA Family Law Act 1975 can result in a perpetrator, and not the victim, getting Legal Aid support in Court cross-examinations.
Section 102NA of the Family Law Act regulates mandatory protections for parties in certain cases. It applies both to cases where the examining party is the alleged perpetrator and when the examining party is the alleged victim.
As Legal Aid can't be provided to both parties, sometimes the perpetrator, and not the victim, receives Legal Aid support in the cross-examination.
Under the scheme, both parties can be funded but only one can have a Legal Aid lawyer. The other party would have to find a lawyer who is a Legal Aid preferred supplier/provider. According to sector experts, there aren’t enough “preferred supplier/provider” lawyers available. In these situations, the other party cannot use the cross-examination scheme and needs to pay for the lawyers’ fees in cross-examination procedures.
Poverty: long-term impact of domestic violence and self-representation
In 2018, the Australian Institute of Health and Welfare calculated that 48 per cent of women who were homeless found themselves in this situation due to domestic violence issues.
Unrepresented parties in family and civil proceedings also face long-term consequences, including the loss of their family and home, lost income, property and possessions together with the adverse effects on physical, emotional and mental health.
In addition, self-representation has an impact on the mental and emotional health of children of self-represented parties, as the time spent on preparing the case and being concerned about the outcome distracts from the quality time spent with children.
The President of the Law Council, Dr Jacoba Brasch QC, says the Law Council’s Justice Project found that a failure to address legal problems have broader cost implications – such as to health, housing, social services and welfare, child protection, families, corrections, policing and justice portfolios.
Community Legal Centres Australia CEO Nassim Arrage says self-represented parties in Family Law proceedings may lose their children. They may also not get a good deal financially out of the relationship breakup, ending up in homelessness, long-term debt, and other significant consequences.
Women's Legal Service Victoria’s Impact Report 2020 states that women who have experienced family violence are ten times more likely to have legal problems.
Mr Arrage says it is known for a long time that legal issues and health issues are often interrelated and that not solving or not getting a good outcome in a legal sense can end with health problems.
He points out that not having good support to go through the legal system means that many women won't even try to access that system.
Learn more about domestic violence in Australia in SBS’s documentary series See What You Made Me Do. Stream it for free on SBS On Demand with subtitles in Simplified Chinese, Arabic, Vietnamese, Korean, Hindi and Punjabi.
If you, a child, or another person is in immediate danger, call 000
If you, or someone you know needs assistance, please contact the following organisations:
1800 RESPECT
Telephone: 1800 737 732
Kids HelplineTelephone:
1800 55 1800
Men’s Referral Service
Telephone: 1300 766 491
Lifeline
Telephone: 13 11 14
Learn more about domestic violence in Australia in SBS’s documentary series See What You Made Me Do. Stream it for free on SBS On Demand with subtitles in