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14 December 2016

The hidden cost of representing yourself in family law matters

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It is common at the Family Law Court and the Federal Circuit Court for at least one party to be a self-represented litigant (“SRL”).

Litigants may choose to represent themselves for a range of reasons including:

  1. They cannot afford legal representation and do not qualify for a grant of legal aid. Some litigants simply have no other option; or
  2. They do not wish to engage a lawyer. Some parties to proceedings may perceive that the legal fees are excessive in relation to the potential outcome, and/or they may consider that they can competently run the litigation themselves.

This blog is written with the second category of litigant in mind.

Does self-representing save money?

Initially, the answer is yes. However, as the litigation progresses any SRL should be aware that the Family Court and Federal Circuit Court have powers to make orders for costs against parties to the litigation.  The general rule in family law matters is that each party should bear their own costs.  If however circumstances justify making an order for costs against one party, the Court may do so. Such circumstances include:

  1. Poor conduct of the parties to the proceedings including in relation to pleadings, particulars, discovery, inspection; and
  2. Whether any party to the proceedings has been highly unsuccessful in the proceedings.

It is difficult for even the most capable SRL to obtain an understanding of the evidence that is relevant to the Court and the conduct that is required. The rules and legislation that govern the conduct of litigation and evidence are complex. SRLs can, and often do, fall into the trap of filing false or misleading evidence, failing to disclose material that should be made available to the other party, wasting the Court’s time by pursuing ultimately unsuccessful issues, wasting the Court’s time by filing Affidavit material that contains lengthy and/or irrelevant material and making applications to the Court that are either partly or wholly unsuccessful.

All such conduct leaves a SRL open to obtaining a poor outcome and/or receiving an adverse Order for costs.

Example one – SRL achieving poor outcome

In the case of Collins & Ricardo no.2 [2015] FamCAFC the appellant was self-represented.  At the trial, Counsel for the Independent Children’s Lawyer made a submission that the trial proceedings fell into the category of case which, because of garrulous and misconceived advocacy by the father,  substantive issues were being ignored, given little attention or obfuscated.

At paragraph 22, the Full Court commented that the father’s applications manifested a complete lack of understanding. At paragraph 27 the Full Court commented that evidence that the applicant attempted to place before the Full Court was self-serving and irrelevant.  In reference to the father’s grounds of appeal and arguments, the Full Court commented at paragraph 42, that many of the grounds of appeal relied upon by the father are not proper grounds of appeal at all.  The Full Court commented that the father’s grounds of appeal were dense, repetitive and extremely difficult to follow.

When commenting on the father’s cross examination of the mother during the trial the Full Court at paragraph 61 stated that,

His Honour was at pains to direct the father towards lines of cross examination essentially relevant to the issues pertaining to the child’s best interest, but the father persistently refrained from heeding His Honour’s comments and conversely, continued to direct his attention to issues which were marginal, at best, to the proper enquiry as to the child’s best interests.

At paragraph 82, the Full Court referred to the trial Judge’s view that difficulties with the father’s credibility arose from his personality and how he generally was unable to concede that anything in his character or behaviour has been responsible for the particular outcomes.

The Full Court also made reference to the trial Judge’s findings that the father had not focused on issues that were relevant to the child’s interests but rather on himself and who was right and who was wrong.

This case is not an isolated example. It is difficult for any SRL to understand the intricacies of the Court and how evidence should be presented, what is relevant and what constitutes a ground of appeal. In this example, this reality led to the father obtaining a poor outcome at trial, loosing his appeal and being Ordered to pay costs.

Example two – Costs awarded against a SRL

In the appeal decision of Aiden & Grant [2016] FamCA, the Full Court referred to the Court file which indicated that in a period of a little over three months the mother had filed six applications in relation to parenting matters.

The Court did not accept that the mother’s applications were ill-conceived or overzealous as submitted by the mother’s Counsel.  At paragraph 23, Judge Bennett stated: “Ultimately, however, I find that the mother’s review application was pursued without reasonable grounds and that proceedings of this nature are proceedings from which the father and child ought to be protected.  I am satisfied that the proceedings are vexatious proceedings.”

In considering whether it was appropriate to make an order for costs against the mother Judge Bennett, at paragraph 32, stated:

I accept that everyone in this case is of modest means.  Modest means or impecuniosity does not provide an indemnity to a liability for costs where other circumstances justify an order being made.

Judge Bennett made an order for the mother to make a contribution to the costs of the Independent Children’s Lawyer and also the father.

In closing the parenting judgment, Judge Bennett also made the following observation, “For what it’s worth, the mother’s focus appears to me to be on herself rather than on the child.  The Court’s focus will be on the child.”

It may be difficult for a SRL to come to an objective view as to the merits of making particular applications to the Court. If such applications are doomed to fail or vexatious in nature, the SRL will most likely be liable to pay the other party’s costs.

Is it possible to achieve a good outcome as a SRL?

It is a misconception that the jurisdiction of family law is relatively simple to understand.

The Family Court and Federal Circuit Courts are commonly referred to as “Courts of impression”. Judges have a very wide discretion to make property Orders that are just and equitable and Orders that are in the best interest of children.

Without a detailed understanding of how to present the facts of a case to the Court, an understanding of whether an application is likely to succeed, or how to appropriately conduct yourself in a Courtroom, it can be common for a SRL to achieve a poor outcome and be ordered to pay the costs of the other party.

While it is acknowledged that in the majority of cases, where someone is self-represented, there is no alternative because of financial realities, the point here is that if your motivation to self-represent is to save money or because you consider that a lawyer is not required, the examples listed above are only two of hundreds of cases which demonstrate that you may fail to achieve your goals.

Contact our office today for an initial consultation with one of our solicitors before choosing to self represent.

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