9 Pitfalls of Self-Representation in NSW Family Law Proceedings.

It can be common in the Family Law jurisdiction for parties to a proceeding to be self-represented. Many litigants choose to represent themselves due to not being able to afford paying for legal representation. This consideration is often greater in circumstances where finances are already strained due to the breakdown of a relationship. Access to free legal services such as Legal Aid are limited and whilst there are numerous informative resources available to Family Law litigants, these can be often confusing and do not give specific advice or guidance as to an individual’s matter. 

The decision to represent one’s self in the Family Law jurisdiction may be made if an individual feels they have no other option. On the other hand, it may be a conscious decision to avoid expending financial resources towards legal representation in the hope that one will be able to resolve their property and or parenting matters themselves. What ought to be considered however is that there are numerous potential pitfalls being a self-represented litigant in the Family Law jurisdiction that can often lead to significant issues in the future. These issues may add to already considerable time, stress and money.

Here are some of the things which need to be considered when deciding to represent yourself in the Family Law jurisdiction and why you should seriously consider engaging legal representation to protect your present and future interests.

  • The Family Law jurisdiction heavily reliant upon documentation. There are numerous forms, applications, affidavits and other documents which need to be completed and filed, depending on the nature of the proceeding. The Rules and Practice Directions of the courts are quite specific. Not knowing which documents are to be completed and how to complete them correctly can result in time being wasted through having to re-write your application and associated documentation or worse, having your application rejected when you file it with the Registry, or even struck out by the court, leading to evidence not being considered or potential costs orders being made against you. 
  • There are several different procedures which may need to be followed before you can file an application in Court. You may be required to participate in mediation or dispute resolution and provide such evidence or apply for an exemption of any such steps before the court will accept any application. Not having appropriate legal representation in your case can result in you not being aware of any pre-requisite steps to be undertaken before filing any proceedings and this can lead to your application being rejected by the court, leading to unnecessary stress and delay.
  • There are many instances when Family Law matters come before the courts that the courts will strongly encourage or even mandate participation in alternative dispute resolution such as mediation or referrals to Family Dispute Resolution Practitioners. Not having experienced lawyers on your side can result in an unfair bargaining position arising where you may not know what your rights are or what you are entitled to at law, making it harder for you to negotiate your position and a resolution with the other party, particularly if they are represented. This can result in you agreeing to terms which are unfavourable to you, whether they be property related or in respect of your children.
  • Family Law can be quite complex, particularly when there are extensive assets of the relationship or marriage comprising of numerous assets such as companies, trusts and other property located interstate and overseas. Not knowing how the law treats such interests can result in you ultimately missing out on a fair and equitable division of the assets, or time spent with children. On the other side, self-represented litigants can sometimes adopt unreasonable negotiating positions by not understanding how the law operates in their matter. Moreover, there are significant risks that property, or debts are accidentally or deliberately unaccounted for or undeclared which can result in significant difficulties arising out of any property settlement if discovered after the fact.
  • Often parties will seek to resolve their matter by way of Consent Orders. Not having Consent Orders drafted correctly in relation to children may lead to confusion about future arrangements and obligations. There are also specific drafting requirements when Orders are made in relation to property, for instance, when dealing with Superannuation, every fund has different requirements. Further, if not all property is accounted for, this can lead to messy complications and future financial claims, possibly resulting in costly and time-consuming applications before the courts. It may also be the case that the Court refuses to make Orders that are proposed by the parties if the wording isn’t correct, even if the parties’ consent. 
  • When dealing with property interests, people often think about the assets of the relationship or marriage such as cars, the home, furniture and so forth. Not having appropriate legal representation can not only result in certain assets not being considered (superannuation being an obvious one), but also forgetting to account for debts. A failure to property consider debts of, or incurred during a relationship or marriage may lead to an individual unfairly accepting responsibility for their spouse’s poor financial decisions. Overall, if not all assets and liabilities are taken into account, the settlement achieved may not be a just and equitable one.  
  • When dealing with property and parenting issues, many litigants will consider their past and present circumstances but will often forget to consider their future needs and circumstances. This can lead to problems developing in the future and create the need to re-litigate, resulting in further animosity developing between the parties even when they had moved on years prior.
  • Not having appropriate legal advice can also lead to situations arising where there has been an inadequate consideration to the failure of non-compliance with orders or agreements. Unworkable, unrealistic or ambiguous agreements can result in future time consuming and costly legal challenges. For instance, an agreement where one party is to pay a large sum of money to the other within say 3 years can prove problematic if there has been an inadequate consideration of how such agreement is to be guaranteed or enforced. If one party then fails to comply and is difficult to locate, this can cause situations arising where pursuing the other party for non-compliance can be an immensely time consuming and costly prospect.
  • Finally, appearing in court as a self-represented litigant can be a daunting, if not terrifying prospect. Experienced lawyers who are experienced advocates in court appear in courts almost every day and have done so for a very long time. Not knowing how to address the court, what to say and how to say it can result in you facing annoyance from the Judge, further exacerbating what is an already stressful and potentially terrifying situation for some. There are also rules that prevent self-represented litigants cross-examining their former spouse if allegations of family violence have been made. 

These are just a few of the potential pitfalls which one can come across when they appear self-represented in the Family Law jurisdiction. Despite the availability of informative resources and Do It Yourself kits, there are nevertheless real risks of one’s interests not being adequately protected when appearing as a self-represented litigant in the Family Law jurisdiction. Situations like the above highlight the significant importance of seriously considering engaging legal representation to deal with your Family Law matter. Remember, what you think you might be saving now, may end up resulting in far greater time, stress and monetary expenses being incurred into the future if things go wrong.

The content contained within this blog is expressed as a general guide as to this area of law and is not intended to contain legal advice specific to an individual’s case. If you require family law advice and assistance, do not hesitate to contact Australian Lawyers and Advocates to discuss your matter with one of our lawyers.

By Jack Leitner. Legal Practice Director, Australian Lawyers and Advocates

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