Balancing the Scales: Best Practices When Dealing With Self-Represented Litigants

Family Law Amendment Act 2023 (Cth)

• This case considers the duty of a trial judge to ensure a fair trial, particularly when dealing with self-represented litigants. It highlights that self-represented litigants often lack legal skill, ability, and objectivity, placing them at a disadvantage in legal proceedings. The judge’s duty is to provide assistance to these litigants to ensure fairness and balance in the trial. However, the judge must not become the advocate of the self-represented litigant and must maintain judicial neutrality. This case also refers to guidelines from the Family Court of Australia on how to assist self-represented litigants. The duty to ensure a fair trial applies whether the litigant has chosen to be self-represented or is unable to obtain legal representation.

Johnson v Johnson (1997) 139 FLR 384

• This case highlights the obligations of a court or tribunal towards an unrepresented party. These obligations include: (1) informing the litigant in person about the trial proceedings, the order of witness testimonies, and their right to cross-examine; (2) explaining any relevant litigation procedures to the litigant in person; (3) assisting them by gathering basic information from witnesses, such as their name, address, and occupation; and (4) if requested by other parties, explaining to the unrepresented party the implications and potential drawbacks of deviating from normal procedures, and their right to object to such changes.

H v OL [2024] NSWSC 271

• In this case, the Supreme Court of New South Wales addressed the question of whether to authorise intensive medical treatment for a 14 year old girl suffering from Pre B Acute Lymphoblastic Leukemia and multiple severe pre-existing health conditions. The hospital sought the court’s permission to proceed with treatment against the wishes of the child’s parents, who preferred palliative care to avoid the distressing side effects of chemotherapy. The parents argued that the burdensome treatment would exacerbate their child’s suffering, given her severe disabilities and frequent seizures. The court, exercising its parens patriae jurisdiction to prioritise the child’s best interests, authorised the treatment, acknowledging its challenges but emphasising the potential to significantly extend the child’s life.

• Self-represented litigants are increasingly common due to the high cost of legal representation, particularly in criminal courts, local courts, and areas like employment and family law. Many seek advice from Legal Aid, duty solicitors, and duty barristers before proceeding.
• In places like NCAT, self-represented litigants may need to seek permission to have legal representation, but there are resources available to help navigate the legal system effectively.
• Although considering the best interests of the child has always been paramount to the court as per section 60CA of the Family Law Act 1975 (Cth), the recent changes introduced by the Family Law Amendment Act 2023 (Cth) emphasise the importance of considering individual circumstances of a family and tailoring custody arrangements to suit the child’s routine and the parents’ schedules. This approach aims to facilitate co-parenting relationships and prioritise the child’s well-being over strict statutory obligations for equal time. These amendments, among others, include the new list of factors used to determine the best interests of the child in section 60CC, and the removal of section 61DA, which had included a presumption of equal shared parental responsibility.
• Quality time with children is important for parents, but practicality should also be considered. It may not be necessary for children to constantly move between households with equal time requirements. Allowing flexibility in visitation schedules can make children’s lives easier and help them understand that both parents love them, regardless of where they stay each night.
• Dealing with difficult self-represented litigants often involves deciding whether to engage with their numerous emails and demands. Judges’ associates may choose not to bring these emails to court’s attention. It is crucial for practitioners to assess the legitimacy of the issues raised and decide whether to respond or refer them to the appropriate authority to avoid unnecessary and costly communication battles.

• In a professional setting, it is important to consider the long-term implications of decisions made during legal proceedings. Encouraging clients to cooperate and compromise, rather than exacerbate conflicts, can lead to smoother co-parenting relationships in the future.
• Providing assistance by being the first to draft letters to experts or prepare orders by consent can significantly simplify procedures for individuals navigating legal processes, fostering better relationships and outcomes in the long run.
• It is important to efficiently address legal matters, especially those involving parenting, always with a bigger picture focus on the children involved.
• It’s likely that a self represented litigant has little or no previous experience with court proceedings. As a practitioner, your manner and behaviour demonstrates to self represented litigants on how they too, should behave in dealings.
• Prioritising relevant and concise information that aids the judge’s understanding is crucial for a successful outcome.
• To effectively communicate with self represented litigants, it is advisable to provide clear, concise information in dot points to ensure understanding. Transparency in legal submissions can prevent surprises and unnecessary adjournments, without prejudicing your client’s case, ultimately saving time and costs for clients.

Dealing with self represented litigants can be a difficult task for many legal practitioners and understanding how to navigate a set of proceedings involving a self represented litigant is a vitally important skill for any practitioner whose day to day work involves advocacy, especially in family law, in the possessions list, in real property, the list really just goes on. Now, joining us today to shed some light on this topic is Chauntelle Ingenito.

Chauntelle is a barrister at Chalfont Chambers in Sydney, and she’s also the co-host of Family Law 101, which is an education platform that hosts workshops and webinars for self represented litigants in family law. Now, Chauntelle last appeared on Hearsay in season three of the podcast, on the topic of distribution of property in family law proceedings, and while family law makes up a large part of her practice, she also works in care and protection, domestic violence, and criminal law matters.

Chauntelle, welcome back!

TIP: So Chauntelle just mentioned section 121 of the Family Law Act 1975 (Cth). This section imposes restrictions on the publication of court proceedings or details about court proceedings. It makes it an indictable offence to publish proceedings or images that identify parties, witnesses or others involved in Family Court proceedings, and this prohibition extends to both print and electronic publications as you would expect. Now, this provision is designed to protect the privacy of the parties involved in family law cases, especially children, but there are exceptions to the rule under section 121. For example, the law allows the publication of proceedings for the purposes of the administration of justice, reporting on cases for example, and it’s important to note that proceedings for an offence under section 121, like most indictable offence provisions, can only be initiated by the Director of Public Prosecutions or by a private person with their consent.

So really trying to get people to make it easier as self represented litigants, but also it helps lawyers on the other side because if the self represented litigant is able to manage their matter better, it’s easier for a lawyer to then deal with them.

TIP: In November 2021, the Law Council of Australia released a position paper that noted a strong correlation between families experiencing disadvantage or have complex needs, and those who require the courts as a form of dispute resolution to solve their legal disputes. The paper says that the costs of accessing the underfunded and resource strained family law system can be prohibitive for families who can’t afford private legal representation but who don’t qualify for a grant of legal aid either, and this naturally results in an increase in self represented litigants who experience family law related challenges. It explains why Chauntelle sees so many self represented litigants in the Family Court. We’ll leave a link to that report in the show notes if you want to read it.

Now, we’re talking about self represented litigants from the perspective of the family law system and the Family Court, because the great work that you’re doing with Family Law 101 is focused on that area. But there are self represented litigants in just about every court in New South Wales and in the Commonwealth. I know from my own experience as a baby lawyer, I did a lot of work in the possessions list in the Supreme Court of New South Wales which deals with mortgage enforcement. I suppose as you’d naturally expect for people facing financial difficulty, there was a lot of self representation there. You see it in the real property list. You see it in some of the lower courts in the district court, sometimes you see actions brought by self represented litigants who believe that a tort has been inflicted against them. That can be especially challenging from a procedural perspective. So what are some of the areas that you’ve seen in your practice, self represented litigants are appearing and what are the challenges that they’re facing in these different areas?

TIP: While a lawyer doesn’t have a general duty of care towards an opposing self represented litigant, they are required to act with honesty, respect, and fairness, the same way you would expect a lawyer to act towards a legally trained opponent. They must avoid unfairly exploiting the underrepresented party or their lack of knowledge about legal matters, and must notify the opponent and the court if the opponent makes a concession that’s contrary to the true position.

Sometimes it’s obvious that concessions should be made. As an example, if a self represented person is asking for something that I think is actually appropriate in the circumstances, I’m not going to sit there and argue against it just because my client wants me to. I’ll give my client certain advice about, well, look, the court’s likely to insist anyway, and if you can be seen as being really, helpful in trying to make the court more efficient, then why wouldn’t you. It goes to your broader mindset as well, about, as an example in parenting matters, when you’re thinking about your kids more than just thinking about yourself, as an example. So I think as practitioners, we have a responsibility to make things as easy as possible. Often what I’ll say to people is that if you’ve got a self represented person on the other side, send them an email straight away, “Hey, you can contact me on this number. I prefer everything to be in writing. But if you want to have a chat about the orders that I’m sending you, feel free to give me a call and we can workshop it” to try and be as easy as possible to make it easier for your clients in the long run and also cheaper if you’re not having to read 20 emails a day from a self represented litigant about every issue under the sun. If there are documents that you can send them, they might say “I can’t open the form. So therefore I can’t get my affidavit filed right now.” Send them a blank copy of the form. it might be two seconds out of your day. But it’s going to make it a lot easier when you come to court the next day. They can’t get the link for the Teams meeting that you’ve done. The Family Court’s doing lots of things on Teams at the moment which is great, mind you. I think it’s the best thing that’s ever happened because it makes it a lot easier for, particularly self represented litigants who are managing work and they’re managing their children, to be able to also engage with the court system. Send them a copy of the Teams link. You don’t have to say “no, you can get it from the court yourself”, just send them the copy of the Teams link. It’s things like that, I think that the court would really appreciate it. The court doesn’t see a lot of what we do when dealing with self represented litigants. They don’t realize how frustrating it can be. Sometimes they do because they see the correspondence that comes through to them and things to that effect. But if you can make a self represented litigant’s life a little bit easier by just giving the basics without prejudicing your client’s own case, why wouldn’t you?

TIP: Judges do have certain duties towards self represented litigants. For example, in Tomasevic v Travaglini & Anor [2007] VSC 337, the court held that a judge has a duty to assist a self represented litigant to the extent that it’s necessary to ensure a fair trial. Now, the exact extent of that assistance will depend on the specific litigant and the case in question, but fairness and balance can be seen as guiding principles for how far to extend that assistance. However, the assistance afforded by the bench can cover both substantive legal issues as well as understanding procedural issues. The limit, though, is that the judge can’t act as an advocate for the self represented litigant. The Family Court’s decision in Johnson v Johnson (1997), is another one that highlights the obligations of the court towards unrepresented parties, and in Johnson v Johnson, the court suggested that those obligations included informing the litigant about the trial proceedings, the order of witness testimonies, their right to cross examine, explaining civil procedure concepts to the litigant, assisting them by gathering basic information from witnesses, like their name, address, and occupation, but not extending to conducting the examination in chief or cross examination for them. And if requested by other parties, explaining to the unrepresented party the implications and potential drawbacks of deviating from normal procedures. So, while a judge has a duty to assist self represented litigants to ensure a fair trial, it doesn’t extend to acting as an advocate for the self represented litigant. The judge still has to be neutral between all the parties, whether they’re represented or self represented, but the extent to which a self represented party needs assistance to ensure a fair trial might mean that the judge does have to treat them differently.

I know that when I’ve dealt with self represented persons on the other side, I’ve seen the judges given leniency about the rules of the affidavits or length of documents or the tendering of documents, and I’ve always thought that’s really unfair. if I’d done that, I wouldn’t have got that same leniency. It wouldn’t have been accepted in the same way. But I always take a step back a little bit and go, “let’s not forget these persons are really dealing with their own kids or their own money. I don’t really know what that’s like. So, maybe it’s not so bad.” But in every court in Australia, there are always either duty lawyers or duty barristers in the New South Wales courts, and I can’t speak for other courts, but in the New South Wales courts and under the Uniform Civil Procedure rules, we have referrals to get legal assistance from the Law Society or the Bar Association’s pro bono scheme, so judges have that responsibility where they see that somebody really needs that assistance to refer people out to those schemes. Now, whether or not they take that assistance is a matter for them. I think everybody who’s ever referred to the scheme should always jump on that ability because the schemes are there for that reason is to help people with managing their matters, and often it’s really tough matters particularly in the Supreme Court, you find it with the mortgages list or the possessions list.

TIP: Chauntelle just referenced some recent changes to the Family Law Act 1975 (Cth), they commenced on the 6th of May 2024. These amendments include changes to how the courts will make parenting orders in the best interests of the child, the removal of the presumption of equal shared parental responsibility, and it also amends the requirements for changing final parenting orders, as well as the role of the independent children’s lawyer and the introduction of what’s called “a harmful proceeding order”. Chauntelle has also referenced section 60CC of the Family Law Act, a critical provision that outlines the considerations that a court must take into account when determining what’s in the best interests of the child. The new section 60CC, which as I said, came into effect on the 6th of May 2024, removes the two tier hierarchical structure of primary and additional considerations and replaces them with six general considerations, as well as two further considerations that only apply if the child is Aboriginal or Torres Strait Islander.

Under the previous legislation, there was the thoughts of the child, or the wishes of the child as part of it, but now it’s much more focused on the wishes of the child, I find. And part of those changes as well… independent children’s lawyers who are appointed now have a statutory obligation to meet with children, unless there is exceptional circumstances, such as they’re under the age of five, or there’s another reason why they shouldn’t be engaging with an independent children’s lawyer. Now in New South Wales, we’re actually really, really good. We meet with children already. So for us in New South Wales, there’s not much of a big change happening. But there are other states in Australia where independent children’s lawyers refuse to meet with children. They just wouldn’t do it. Now, because it is a requirement, we’re going to be having a lot more independent children’s lawyers who are dealing with the children themselves and getting their wishes at the beginning and understanding why the family dynamic may or may not work as an example for having particular time regimes. So it is making it a lot easier for people to understand, and a lot less factors to be considered. I think there are benefits and negatives to the changes. We don’t have the automatic statutory pathway about equal time. But at the same time, we’re thinking about families on a very holistic basis now. We’re thinking schedules of work, schedules of the kids. You know, If your kids are doing sports four nights a week, why are we arguing about their weeknight time when they’re getting home, they’re eating dinner, they’re doing their homework, they go to bed.

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