Cost concerns and easy access to information online about the court process have made self-representation in family law disputes more tempting, however, it’s crucial to know the potential pitfalls and challenges involved before deciding to go it alone, writes Attwood Marshall Lawyers Family Law Associate Laura Dolan.
Summary
With information on court processes more accessible than ever before, an increasing number of individuals are opting to represent themselves in family law matters rather than seek the guidance of an experienced family lawyer.
The court now provides do-it-yourself kits and detailed guides on completing common forms such as applications for consent orders, affidavits and financial statements should someone wish to take on the obligations and responsibilities to represent themselves under the Family Law system. Several podcasts and websites are also readily available which focus on family law matters and break down the procedures involved for self-litigants.
One of the main reasons why many individuals opt for self-representation is to save on legal fees. They may not qualify for legal aid, as legal aid uses strict criteria to decide who can access this service, including means testing, funding guidelines and in most cases, a legal merits test. Which leaves many people believing that they cannot afford the costs associated with a commercial law firm that practices family law.
Many individuals mistakenly believe that their case is simple and straightforward; most family law matters are far from it!
Then there is also the desire to have more control over the legal matter at hand. Often, people believe representing themselves means they get a direct say in the outcome of their family law case. They may believe that representing themselves allows them to better advocate for their interests and preferences. This perception often arises from a past negative experience with a lawyer, leading them to view self-representation as a better option.
However, family law matters can be some of the most contentious and complex legal matters that end up before a court. They are often highly emotional, personal, and financially challenging for all parties. Before deciding to ‘go it alone’, it is essential to know the risks involved.
Remember the expression “Just because you can do it yourself, does not necessarily mean you should”. Without the necessary legal expertise, individuals may struggle to navigate complex legal procedures, leading to misunderstandings, errors, and unfavourable outcomes. Engaging a lawyer ensures your case is presented effectively, potentially saving you money in the long term and ensuring you get the fairest outcome in the family court process.
Lawyers employ strategies to resolve issues as quickly as possible, instead of engaging in prolonged disputes with your former spouse. Moreover, the emotional toll of self-representation, particularly in emotionally charged family law cases involving parenting arrangements, property settlements, or domestic and family violence, should not be underestimated. A lawyer is there to support you, fight for you, and help carry the burden. You just need to do your homework and pick the right law firm to act for you!
The pitfalls of self-representation
The decision of whether to represent yourself in a family law matter is a deeply personal choice. If you are considering representing yourself, it is crucial to weigh the risks and benefits carefully.
Here are some of the risks you should consider:
- Lack of understanding of court procedures and legislation: one significant risk is not having a comprehensive grasp of the legal rules and court processes. This lack of knowledge can hinder your ability to navigate the complexities of the legal system effectively and in a timely manner. You don’t know what you don’t know – experience can make or break a case.
- Emotionally charged negotiations: self-represented individuals may encounter difficulties when trying to negotiate or reach agreements with a former spouse.
- Court presentation: presenting your case convincingly in court can be challenging without legal expertise. Self-represented litigants may struggle to effectively communicate their situation and legal arguments, potentially impacting the outcome.
- Protecting your rights: ensuring that your rights are protected is paramount in any legal matter. Self-representation can pose a risk of overlooking critical rights or failing to advocate for them adequately.
When a self-represented litigant tries to argue their case, and overlooks the nuances of their case or pre-empt the next steps to come, this can drag the matter out, result in further court attendances, and additional and unnecessary legal costs that delay the ability of the parties to move on with their lives.
The benefits of legal representation during divorce and separation
A solicitor who practices in family law can help litigants identify what legal issues are at play in their dispute, what options are available, and help them achieve a just and equitable outcome that can save them excessive stress and money.
Family lawyers have extensive knowledge of legal principles, court procedures, and rules around evidence. They also have the tools to put the best possible case forward. They have access to research databases, expert witnesses, and negotiation skills that can significantly impact the outcome of a case, achieving favourable settlements outside of court or advocating for their client at trial.
A family lawyer will also help devise an effective strategy and prepare a case thoroughly, gathering evidence and persuasive arguments to put before the other party or the court.
Attwood Marshall Lawyers has recently taken on a family law case representing the wife in a property matter. In 2020, when the husband and wife decided to separate, they believed their separation was straightforward, opting to draft their own agreement by way of an Application for Consent Orders, and file it with the Court to formalise their arrangement. Final property orders were then made.
What makes this case intriguing is that neither party sought legal advice at the time. Fast forward three years, and the husband has had a change of heart. He now wants the 2020 orders set aside. Upon closer examination of the settlement documentation that was filed with the Court in 2020, a startling discovery was made – multiple errors within the settlement papers, and it turns out the couple didn’t follow the proper process.
Had the wife sought legal advice from an experienced family lawyer in 2020, she might have navigated the complexities of her property settlement more effectively. But instead, she’s found herself entangled in legal proceedings before the Federal Circuit and Family Court of Australia, with her case now being referred for judicial determination.
What’s truly striking is the cost of her initial decision to represent herself in what appeared to be a simple matter. In hindsight, it’s become a costly endeavour, as she’s shelling out more than five times the amount she would have paid for professional advice on those Consent Orders back in 2020.
Are you still convinced self-representation is the way to go?
Despite weighing up the risks, if you are still leaning towards self-representation, it is imperative to consult with a family lawyer before making a decision to help frame your case and ensure you are fully aware of the journey you are about to embark on.
After receiving advice, it may be the case that you opt for a limited-scope representation instead of completely going it alone, where a family lawyer assists with specific parts of a case rather than its entirety. For example, you may find it beneficial to obtain some legal advice for enquiries related to asset pool issues, valuations and what your entitlement may be in a property settlement.
There are many options available.
The Federal Circuit and Family Court of Australia advises parties to ask the following questions when deciding whether to represent their own interests:
- Do you have the time and resources to prepare a matter?
- Do you have the necessary legal skills?
- Can you speak confidently to the judge or registrar who will hear your case?
If you choose to go it alone, you will be referred to as an unrepresented litigant. As an unrepresented litigant, you must abide by the same obligations and responsibilities in court as a lawyer.
You will need to effectively prepare, file, and serve court documents, gather evidence to support your case, find appropriate expert witnesses, present the evidence in court, examine witnesses in court, present your case to a judge or other decision-maker, and follow orders of the court.
Attwood Marshall Lawyers – helping families resolve disputes with as little conflict as possible
Too often, self-represented litigants set themselves at a disadvantage by arguing their own case, unprepared for the complexities of family law, going up against experienced and skilled legal practitioners.
If you are facing a family battle, make sure you give yourself the best chance achieving a desirable outcome, and seek guidance from a legal practitioner who can support you and present your case effectively, and negotiate with purpose.
Our family law team is experienced in children and parenting matters, helping people navigate divorce and separation, negotiate property settlements and draft binding financial agreements.
If you need assistance with a family law matter or are seeking some initial advice, please don’t hesitate to contact our Family Law Department Manager, Donna Tolley, on direct line 07 5506 8241 or email dtolley@attwoodmarshall.com.au. Our team are available at any of our conveniently located offices at Robina Town Centre, Coolangatta, Southport, Kingscliff, Brisbane, Sydney, and Melbourne.
