Anstie, Lara, ‘Cross examination of victims of family and domestic violence by self-represented perpetrators in family law proceedings’ (2016) 43(4) Brief 38.
Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence: Improving Legal Frameworks (Consultation Paper, 2010).
Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence – A National Legal Response (ALRC Report 114) 2010.
Australian Law Reform Commission, Family Law for the Future – An Inquiry into the Family Law System, ALRC Report 135, March 2019
Bagshaw, Dale et al, ‘The effect of family violence on post-separation parenting arrangements The experiences and views of children and adults from families who separated post-1995 and post-2006’ [2011] (86) Family Matters 49.
Bailey, Alice, 'Separating safety from situational violence: Response to ‘Allegations of family violence and child abuse in family law children‘s proceedings‘' [2007] (77) Family Matters 26.
Behrens, J. & Bruce Smyth, Australian Family Court Decisions About Relocation: Parents’ Experience and Some Implications for Law and Policy. (2010) 38 Federal Law Review 1-20.
Booth, Tracey, Miranda Kaye, & Jane Wangmann. (2022). Addressing the problem of direct cross-examination in Australian family law proceedings. University of New South Wales Law Journal, 45(4), 1415–1448.
Bozin, Danielle, ‘The Hague Child Abduction Convention's Grave Risk of Harm Exception: Traversing the Tightrope and Maintaining Balance between Comity and the Best Interests of the Child’ (2016) 35(1) University of Tasmania Law Review 24-42, doi: 10.3316/INFORMIT.135379927197544
Bromfield, Leah, et al, ‘Issues for the Safety and Wellbeing of Children in Families with Multiple and Complex Problems: The Co-Occurrence of Domestic Violence, Parental Substance Misuse and Mental Health Problems’ (National Child Protection Clearinghouse Issues Paper No 33, Australian Institute of Family Studies, December 2010).
Bryant, Diana, ‘The Family Courts and Family Violence’ (Paper Presented at the Judicial Conference of Australia Colloquium, 9-11 October 2015).
Carson, R., et al., (2022). Compliance with and enforcement of family law parenting orders: Final Report, ANROWS.
Carson, R., Qu, L., Kaspiew, R., Stevens, E., Sakata, K., Horsfall, B. et al. (2022). Evaluation of the Lawyer-assisted Family Law Property Mediation: Legal Aid Commission Trial: Final Report. Melbourne: Australian Institute of Family Studies.
Carson, Rachel, Edward Dunstan, Jessie Dunstan and Dinika Roopani, Children and young people: Family law system experiences and needs - Final Report 2018 (Research Report – June 2018, Australian Institute of Family Studies).
Caruana, Catherine, ‘Dispute resolution choices: A comparison of family dispute resolution, family law conferencing services and collaborative law’ [2010] (85) Family Matters 80.
Chisholm, R & Fehlberg, B. (2022) The High Court and family law: The Hague child abduction cases. Australian Journal of Family law, 35: 39-67.
Chisholm, Richard, ‘The Sharing of Experts’ Reports Between the Child Protection System and the Family Law System’ (Canberra: Attorney-General’s Department, 2014).
Chisholm, Richard, ‘Information-sharing in Family Law & Child Protection: Enhancing Collaboration’ (Canberra: Attorney-General’s Department, 2013).
Chisholm, Richard, ‘Family Courts Violence Review: A Report’ (Canberra: Attorney-General’s Department, 2009).
Chisholm, Richard, ‘“Less adversarial” proceedings in children’s cases’ [2007] (77) Family Matters 28.
Coy, Maddy et al, Picking up the pieces: domestic violence and child contact (Rights of Women and CWASU, 2012).
Croucher, Rosalind, ‘Family Law: Challenges for Responding to Family Violence in a Federal System’ in Hayes, Alan, and Daryl Higgins (eds), Families, Policies and the Law: Selected Essays on Contemporary Issues for Australia (Australian Institute of Family Studies, 2014).
De Maio, John, et al, ‘Survey of Recently Separated Parents: A study of parents who separated prior to the implementation of the Family Law Amendment (Family Violence and Other Matters) Act 2011’ (Commissioned Report, Australian Institute of Family Studies, 2013).
Dewar, John, et al, ‘Litigants in Person in the Family Court of Australia: A report to the Family Court of Australia’, 2000).
Family Court of Australia, Self-represented Litigants - A Challenge: Project Report (December 2000-December 2002).
Family Court of Australia, Finding a Better Way: A bold departure from the traditional common law approach to the conduct of legal proceedings (April 2007).
Family Court of Australia, ‘Implications of the Australian Institute of Family Studies "Allegations of Family Violence and Child Abuse in Family law Children's Proceedings" report: Response from the Family Court of Australia’ [2007] (77) Family Matters 16.
Family Law Council, ‘Litigants in Person: A Report to the Attorney-General’ (August 2000).
Family Law Council, ‘In Response to the first two terms of reference on Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems’ (Interim Report to the Attorney-General, June 2015).
Faulks, John, ‘Justice and the protection of children’ in Hayes, Alan, and Daryl Higgins (eds), Families, Policies and the Law: Selected Essays on Contemporary Issues for Australia (Australian Institute of Family Studies, 2014).
Fehlberg, Belinda and Christine Millward, ‘Family violence and financial outcomes after parental separation’ in Hayes, Alan, and Daryl Higgins (eds), Families, Policies and the Law: Selected Essays on Contemporary Issues for Australia (Australian Institute of Family Studies, 2014).
Fogarty, John, ‘Family Court of Australia: into a brave new world’ (2009) 20(3) Australian Family Lawyer 2-24.
Freeman, Marilyn and Nicola Taylor, ‘Domestic violence and child participation: contemporary challenges for the 1980 Hague Child Abduction Convention’ (2020) 42(2) Journal of Social Welfare and Family Law 154, (UK) doi: 10.1080/09649069.2020.1751938
Rob George & April Gallwe, ‘How do parents experience relocation disputes in the family courts?’ (2016) 38(4) Journal of Social Welfare and Family Law 394.
Harrison, Margaret, Finding a Better Way: A bold departure from the traditional common law approach to the conduct of legal proceedings (April 2007).
Higgins, Daryl and Rae Kaspiew, ‘Child protection and family law… Joining the dots’ (NCPC Issues No. 34, Australian Institute of Family Studies, 2011).
Horsfall, Briony and Rae Kaspiew, ‘Relocation in separated and non-separated families: Equivocal evidence from the social science literature’ (2010) 24 AJFL 34.
Humphreys, Cathy and Monica Campo, Fathers who use violence: Options for safe practice where there is ongoing contact with children (CFCA Paper No. 43 – June 2017, Australian Institute of Family Studies).
Humphreys, Cathy and Meredith Kiraly, ‘Developmentally sensitive parental contact for infants when families are separated’ [2010] (85) Family Matters 49.
Jaffe, Peter G., Janet R. Johnston, Claire V. Crooks, Nicholas Bala, ‘Custody disputes involving allegations of Domestic violence: toward a differentiated approach to parenting plans’ (2008) 46(3) Family Court Review 500.
James, Kerrie, ‘Domestic Violence Within Refugee Families: Intersecting Patriarchal Culture and the Refugee Experience’ (2010) 31 The Australian and New Zealand Journal of Family Therapy 275.
James-Hanman, D & Holt, S. Post-Separation Contact and Domestic Violence: our 7-Point Plan for Safe[r] Contact for Children (2021) 36 Journal of Family violence 991-1001 doi: 10.1007/s10896-021-00256-7
Johnston, JR and Sullivan, MJ, ‘Parental alienation: in search of common ground for a more differentiated theory’ (2020) 58(2) Family Court Review 270-292.
Joint Select Committee, Second interim report: Improvements in family law proceedings, (2021: Commonwealth of Australia).
Kaspiew, Rae, et al, Compliance with and enforcement of family law parenting orders: Views of professionals and judicial officers (ANROWS, 2022).
Kaspiew, R., Horsfall, B., Qu, L., Nicholson, J. M., Humphreys, C., Diemer, K., … Dunstan, J. Domestic and family violence and parenting: Mixed method insights into impact and support needs(ANROWS, 2017).
Kaspiew, Rae, et al, ‘Evaluation of the 2012 Family Violence Amendments’ (Synthesis Report, Australian Institute of Family Studies, 2015).
Kaspiew, Rae, et al, ‘Experiences of Separated Parents Study’ (Evaluation of 2012 Family Violence Amendments)’ (Report, Australian Institute of Family Studies, 2015).
Kaspiew, Rae, et al, ‘Responding to Family Violence: A Survey of Family Law Practices and Experiences’ (Report, Australian Institute of Family Studies, October 2015).
Kaspiew, Rae, et al, ‘Court Outcomes Project’ (Report, Australian Institute of Family Studies, October 2015).
Kaspiew, Rae, et al, ‘Independent Children’s Lawyers Study’ (Final Report (2nd Edition), Australian Institute of Family Studies, June 2014).
Kaspiew, Rae, et al, ‘Post-separation parenting arrangements involving minimal time with one parent’ in Hayes, Alan, and Daryl Higgins (eds), Families, Policies and the Law: Selected Essays on Contemporary Issues for Australia (Australian Institute of Family Studies, 2014).
Kaspiew, Rae, et al, ‘Evaluation of a pilot of legally assisted and supported family dispute resolution in family violence cases’ (Commissioned Report, Australian Institute of Family Studies, 2012).
Kaspiew, Rae, Juliet Behrens and Bruce Smyth, ‘Relocation disputes in separated families prior to the 2006 reforms: An empirical study’ [2011] (86) Family Matters 72.
Kaspiew, Rae et al, ‘Evaluation of the 2006 Family Law Reforms’ (Australian Institute of Family Studies, 2009).
Kelly, Joan B & Johnson, Michael P, ‘Differentiation Among Types of Intimate Partner Violence: Research Update and Implications for Interventions’ (2008) 46 Family Court Review 476.
Kruk, E, ‘Parental alienation as a form of emotional child abuse: current state of knowledge and future directions for research’ (2018) 22(4) Family Science Review, 141-164.
Laing, Lesley, No Way to Live: Women’s Experiences of Negotiating the Family Law System in the Context of Domestic Violence (Faculty of Education and Social Work, University of Sydney, 2010).
Lee‐Maturana et al, Characteristics and experiences of targeted parents of parental alienation from their own perspective: A systematic literature review (2019) 71 Australian Journal of Psychology 83-91.
Maloney, et al, ‘Allegations of family violence and child abuse in family law children’s proceedings: A pre-reform exploratory study’ (Research Report No. 15, Australian Institute of Family Studies, 2007).
McDonald, Myfanwy and Kate Rosier, ‘Interagency Collaboration: Part A. What is it, what does it look like, when is it needed and what supports it?’ (AFRC Briefing No. 21, Australian Institute of Family Studies, 2011).
McIntosh, Jennifer et al, ‘Post-Separation Parenting Arrangements and Development Outcomes for Infants and Children’ [2011] (86) Family Matters 41.
Meier, J, Dickson, S., O’Sullivan, C., & Rosen, L. (2022) The Trouble with Harman and Lorandos’ Parental Alienation Allegations in Family Court Study (2020)Journal of family, trauma, child custody & child development, 19(3-4): 295-317, doi:10.1080/26904586.2022.2036286.
Mercer, J and Drew, M, ‘Introduction to parental alienation concepts and practices’ In Mercer J and Drew, M. eds. Challenging Parental Alienation: New Directions for Professionals and Parents, (2021) Routledge.
Mercer, Jean and Drew, Margaret (eds) Challenging Parental Alienation: New Directions for Professionals and Parents, 2021, Routledge.
Moloney, et al, ‘Understanding parenting disputes after separation’ (Research Report No. 36, Australian Institute of Family Studies, 2016).
Moloney, Lawrie, Bruce Smyth, Ruth Weston, Nicholas Richardson, Lixia Qu and Matthew Gray, ‘Allegations of family violence and child abuse in family law children’s proceedings: A pre-reform exploratory study Research Report No. 15 — May 2007’ (Australian Institute of family Studies, 2007).
National Scientific Council on the Developing Child, ‘Excessive Stress Disrupts the Architecture of the Developing Brain’ Working Paper No 3 (2005).
Neilson, Linda C, ‘Parental Alienation Empirical Analysis: Child Best Interests or Parental Rights?’ (Muriel McQueen Fergusson Centre for Family Violence Research and The FREDA Centre for Research on Violence Against Women, 2018).
Parkinson, Patrick, ‘The ties that bind: Separation, divorce and the indissolubility of parenthood’ in Hayes, Alan, and Daryl Higgins (eds), Families, Policies and the Law: Selected Essays on Contemporary Issues for Australia (Australian Institute of Family Studies, 2014).
Parkinson, Patrick, ‘Violence, abuse and the limits of shared parental responsibility’ [2013] (92) Family Matters 7.
Parkinson, Patrick and Judith Cashmore, ‘When Mothers Stay: Adjusting to Loss After Relocation Disputes’ (2013) 47 (1) Family Law Quarterly 65.
Parkinson, Patrick, ‘The realities of relocation: Messages from judicial decisions’ (2008) 22 Australian Journal of Family Law 35.
Peel, Sara and Rosalind Croucher, ‘Mind(ing) the gap: Law reform recommendations responding to child protection in a federal system’ [2011] (89) Family Matters 21.
Perry, Bruce D, ‘Applying Principles of Neurodevelopment to Clinical Work with Maltreated and Traumatized Children’, in Working with Traumatized Youth in Child Welfare, ed by Nancy Boyd Webb, Guilford Press NY (2006).
Qu, Lixia et al, ‘Post-separation parenting, property and relationship dynamics after five years’ (Commissioned report, Australian Institute of Family Studies, December 2014).
Qu, Lixia and Ruth Weston, ‘Parenting dynamics after separation: A follow-up study of parents who separated after the 2006 family law reforms’ (Commissioned Report, Australian Institute of Family Studies, 2010).
Qu, Lixia, Family dispute resolution: Use, timing, and outcomes (2019) Australian and New Zealand Journal of Family Therapy 24-42.
Qu, Lixia, et al, ‘Post-separation parenting, property and relationship dynamics after five years’ (Australian Institute of Family Studies, 2014).
Queensland Special Taskforce on Domestic and Family Violence in Queensland, Not Now, Not Ever: Putting an End to Domestic and Family Violence in Queensland (2015).
Rathus, Z. A history of the use of the concept of parental alienation in the Australian family law system: contradictions, collisions and their consequences. (2020) 42 (1) Journal of Social Welfare and Family Law 5-17.
Rhoades, H, ‘Book Review: Challenging Parental Alienation: New Directions for Professionals and Parents, Jean Mercer and Margaret Drew (eds)’ (2022) 35 Australian Journal of Family Law 290-294.
Smallwood, Emma, Stepping Stones: Legal Barriers to Economic Equality After Family Violence (Women’s Legal Service Victoria, 2015).
Strickland, Justice Steven, ‘Attachment Theory and Family Violence: a judicial perspective’ (Paper delivered at AFCC 49th Annual Conference, Chicago, 6-9 June 2012).
Sturge, Claire and Danya Glaser, ‘Contact and Domestic Violence – The Experts’ Court Report’ (2000) 30 Family Law, 615-629.
Tomison, Adam M, ‘Exploring Family Violence: Links Between Child Maltreatment and Domestic Violence’ (National Child Protection Clearinghouse Issues Paper No 13, Australian Institute of Family Studies, June 2000).
Trane, Sarah T., Champion, Kelly M., and Hupp, Steven D. A. Comparison of Parental Alienation Treatments and Evidence-Based Treatments for Children. In Mercer J and Drew, M. eds. Challenging Parental Alienation: New Directions for Professionals and Parents, (2021) Routledge.
Trimmings, Katarina, Onyója Momoh, ‘Intersection between Domestic Violence and International Parental Child Abduction: Protection of Abducting Mothers in Return Proceedings’ (2021) 35(1) International Journal of Law, Policy and the Family 1-19 (UK).
UN General Assembly, Custody, violence against women and violence against children Report of the Special Rapporteur on violence against women and girls, its causes and consequences (Report of the Special Rapporteur on violence against women and girls, its causes and consequences, Reem Alsalem) (2023).
UN OHCHR, Special Rapporteur on violence against women and girls, its causes and consequences (SR), https://www.ohchr.org/en/calls-for-input/2022/call-inputs-custody-cases-violence-against-women-and-violence-against-children (2022).
Vesneski, William M. et al, ‘U.S. Judicial Implementation of the Hague Convention in Cases Alleging Domestic Violence’ (2011) 62(2) Juvenile Family Court Journal 1-20, doi: 10.1111/j.1755-6988.2011.01058.x
Walsh K. The Failure to Recognize Continuing Harm: Post-Separation Domestic Abuse in Child Contact Cases. Violence Against Women. 2024:10778012241243049. PMID: 38557267.
Wangmann, J., Booth, T., & Kaye, M. (2020). “No straight lines”: Self-represented litigants in family law proceedings involving allegations about family violence (Research report, 24/2020). Sydney: ANROWS.
Warrier, Sujata ‘It’s in Their Culture: Fairness and Cultural Considerations in Domestic Violence’ (2008) 46 Family Court Review 537.
Weston, Ruth et al, ‘Care-time arrangements after the 2006 reforms’ [2011] (86) Family Matters 19.
Women’s Safety and Justice Taskforce, Hear her voice: Report one, Volume 2 ‘The Mountains we must climb’ (2021)
Zashin, Andrew A, Domestic violence by proxy: a framework for considering a child’s return under the 1980 Hague Convention on the Civil Aspects of Child Abduction’s Article 13(b) Grave risk of harm cases post Monasky, (2021) 33 Journal of the American Academy of Matrimonial Lawyers 571-592.
Important note: The expression “self-represented” is used in this bench book to refer to any situation where a party is not represented by a lawyer. It is acknowledged that the expression may be inappropriate in some contexts. It may, for example, suggest that a party has exercised a choice to represent themselves, when in fact they do so due to lack of financial resources or access to legal assistance. On the other hand, some parties choose to represent themselves because they believe they are best equipped to do so and may object to the use of an expression such as “unrepresented” on the basis that it may, for example, be interpreted to suggest that they are unable to properly or fully participate in the proceedings in their own right.
The questions of the extent to which a judicial officer is obliged to intervene in proceedings involving a party or parties who are self-represented (here called self-represented litigants – SRLs) was addressed comprehensively by the Full Court of the Family Court in Re F: Litigants in Person Guidelines [2001] FamCA 348. The Court set out a number of guidelines regarding interventions judicial officers may make without raising an apprehension of bias. The overriding task of the judicial officer is to ensure procedural fairness to all parties.
The guidelines are expressed as not exhaustive, and are intended to assist judicial officers in their exercise of discretion in any particular case, rather than prescribe how proceedings should be conducted. They include:
•
informing the SRL of procedural matters;
•
generally explaining the SRL’s right to object and claim of privilege;
•
questioning witnesses;
•
clarifying the relevant issues;
•
clarifying the substance of the SRL’s submissions and orders sought; and
•
identifying submissions and applications that ought to be made.
In the early 2000s, the former Family Court of Australia recognised the challenge of increasing numbers of litigants who are self-represented at some stage or stages in family law proceedings. Findings of court-commissioned research included:
•
The majority of SRLs cannot afford legal representation, however a significant minority said they did not need or want representation;
•
SRLs are likely to need information about court procedures and support services; advice about completion of court forms, preparation of documents, formulation of legal argument, and court etiquette; and other forms of practical and emotional support;
•
Judicial officers and registry staff experience difficulties when dealing with SRLs who lack legal and procedural knowledge;
•
SRLs consume more of the Court’s resources than represented clients;
•
Giving assistance to SRLs may compromise judicial impartiality;
•
A need for consistent approaches by judicial officers and registry staff to responding to the needs of SRLs; and
•
A link was identified between the unavailability of legal aid and self-representation.
Further research conducted at the time noted the diversity in skills, knowledge, cultural background, socio-economic status, personality and motivations of SRLs; and the need for courts to be flexible when dealing with SRLs and aware that the manner in which SRLs engage in litigation may be influenced by their lack of knowledge and experience of court procedures and family law. However in some cases an SRL’s behaviour may be designed to harass or annoy or for another wrongful purpose, which may be considered vexatious. The study observed that:
•
matters involving SRLs are more likely to go to a hearing than be resolved by out-of-court settlement;
•
SRLs experience significant difficulties cross-examining their former partner; and
•
judicial officers, in addressing the needs of SRLs, must consider and weigh both the need to redress any power imbalance between the parties due to lack of representation or a history of domestic and family violence and the need to avoid any perception of leniency or unfair advantage towards the SRL.
Later research also indicated that where one or both parties are unrepresented, the Court’s ability to receive appropriate evidence and make decisions in the child’s best interests may be jeopardised.
An extensive Australian Institute of Family Studies evaluation of the 2006 changes to the Family Law Act reported that women regularly felt pressured to agree to outcomes in negotiations that they didn’t feel were in the children’s interests. There were particular concerns regarding the suitability of agreements reached in cases where there was a lack of representation at all and the parties agreed to shared or equivalent care, or there was a perceived imbalance between the parties in the quality of legal representation, and cases where there had been a history of domestic and family violence. Where a self-represented party had also experienced violence, there were additional concerns that the party found it difficult to speak personally to the judicial officers. The circumstances surrounding consent orders raised similar concerns where orders were made to formalise agreements made either outside the court process or sometime after court proceedings had been initiated.
In some cases where consent orders are proposed it may be appropriate for the judicial officer to ask questions or request further information in order to closely scrutinise the suitability of the proposal, or to appoint an Independent Children’s Lawyer or order a Family Report or expert report to determine what is in a child’s best interests.
Where an application is made to the Federal Circuit and Family Court of Australia (FCFCA) for a parenting order by consent, the parties must formally advise the Court whether any allegations had been made in the proceedings of family violence or child abuse or neglect (or risk thereof). Parties must inform the court of issues relating to mental ill-health, drug or alcohol addiction, serious parental incapacity, or any other allegation involving a risk to the child concerned AND whether a party considers that the child concerned has been or is at risk of abuse, neglect or family violence, and whether a party considers that they or another party to the proceedings has been or is at risk of family violence. Should any of these circumstances be advised, the parties must explain to the Court how the parenting order attempts to deal with the allegations (see Rule 10.05 of the FCFCOA Rules).
Research has shown the value to the court and parties of self-represented parties receiving advice and information on appropriate conduct and language in the courtroom prior to any court appearance or hearing. Legal assistance providers deliver duty lawyer services to self-represented litigants at many locations of the FCFCA including providing legal advice and information about court processes, help with the preparation of documents, and in some cases, representation.
With the merger of the Family Court of Australia and the Federal Circuit Court of Australia it is intended that the Court process will be simplified and make it easier to navigate for SRLs. However, in practice the addition of a new set of Rules - coupled with an already complex piece of legislation, regulations and protocols - it is not clear whether the new FCFCA will make things easier or more difficult for SRLs. This is a problem that has confronted the Court for some time.
Important note: The expression “self-represented” is used in this bench book to refer to any situation where a party is not represented by a lawyer. It is acknowledged that the expression may be inappropriate in some contexts. It may, for example, suggest that a party has exercised a choice to represent themselves, when in fact they do so due to lack of financial resources or access to legal assistance. On the other hand, some parties choose to represent themselves because they believe they are best equipped to do so and may object to the use of an expression such as “unrepresented” on the basis that it may, for example, be interpreted to suggest that they are unable to properly or fully participate in the proceedings in their own right.
The questions of the extent to which a judicial officer is obliged to intervene in proceedings involving a party or parties who are self-represented (here called self-represented litigants – SRLs) was addressed comprehensively by the Full Court of the Family Court in Re F: Litigants in Person Guidelines [2001] FamCA 348. The Court set out a number of guidelines regarding interventions judicial officers may make without raising an apprehension of bias. The overriding task of the judicial officer is to ensure procedural fairness to all parties.
The guidelines are expressed as not exhaustive, and are intended to assist judicial officers in their exercise of discretion in any particular case, rather than prescribe how proceedings should be conducted. They include:
•
informing the SRL of procedural matters;
•
generally explaining the SRL’s right to object and claim of privilege;
•
questioning witnesses;
•
clarifying the relevant issues;
•
clarifying the substance of the SRL’s submissions and orders sought; and
•
identifying submissions and applications that ought to be made.
In the early 2000s, the former Family Court of Australia recognised the challenge of increasing numbers of litigants who are self-represented at some stage or stages in family law proceedings. Findings of court-commissioned research included:
•
The majority of SRLs cannot afford legal representation, however a significant minority said they did not need or want representation;
•
SRLs are likely to need information about court procedures and support services; advice about completion of court forms, preparation of documents, formulation of legal argument, and court etiquette; and other forms of practical and emotional support;
•
Judicial officers and registry staff experience difficulties when dealing with SRLs who lack legal and procedural knowledge;
•
SRLs consume more of the Court’s resources than represented clients;
•
Giving assistance to SRLs may compromise judicial impartiality;
•
A need for consistent approaches by judicial officers and registry staff to responding to the needs of SRLs; and
•
A link was identified between the unavailability of legal aid and self-representation.
Further research conducted at the time noted the diversity in skills, knowledge, cultural background, socio-economic status, personality and motivations of SRLs; and the need for courts to be flexible when dealing with SRLs and aware that the manner in which SRLs engage in litigation may be influenced by their lack of knowledge and experience of court procedures and family law. However in some cases an SRL’s behaviour may be designed to harass or annoy or for another wrongful purpose, which may be considered vexatious. The study observed that:
•
matters involving SRLs are more likely to go to a hearing than be resolved by out-of-court settlement;
•
SRLs experience significant difficulties cross-examining their former partner; and
•
judicial officers, in addressing the needs of SRLs, must consider and weigh both the need to redress any power imbalance between the parties due to lack of representation or a history of domestic and family violence and the need to avoid any perception of leniency or unfair advantage towards the SRL.
Later research also indicated that where one or both parties are unrepresented, the Court’s ability to receive appropriate evidence and make decisions in the child’s best interests may be jeopardised.
An extensive Australian Institute of Family Studies evaluation of the 2006 changes to the Family Law Act reported that women regularly felt pressured to agree to outcomes in negotiations that they didn’t feel were in the children’s interests. There were particular concerns regarding the suitability of agreements reached in cases where there was a lack of representation at all and the parties agreed to shared or equivalent care, or there was a perceived imbalance between the parties in the quality of legal representation, and cases where there had been a history of domestic and family violence. Where a self-represented party had also experienced violence, there were additional concerns that the party found it difficult to speak personally to the judicial officers. The circumstances surrounding consent orders raised similar concerns where orders were made to formalise agreements made either outside the court process or sometime after court proceedings had been initiated.
In some cases where consent orders are proposed it may be appropriate for the judicial officer to ask questions or request further information in order to closely scrutinise the suitability of the proposal, or to appoint an Independent Children’s Lawyer or order a Family Report or expert report to determine what is in a child’s best interests.
Where an application is made to the Federal Circuit and Family Court of Australia (FCFCA) for a parenting order by consent, the parties must formally advise the Court whether any allegations had been made in the proceedings of family violence or child abuse or neglect (or risk thereof). Parties must inform the court of issues relating to mental ill-health, drug or alcohol addiction, serious parental incapacity, or any other allegation involving a risk to the child concerned AND whether a party considers that the child concerned has been or is at risk of abuse, neglect or family violence, and whether a party considers that they or another party to the proceedings has been or is at risk of family violence. Should any of these circumstances be advised, the parties must explain to the Court how the parenting order attempts to deal with the allegations (see Rule 10.05 of the FCFCOA Rules).
Research has shown the value to the court and parties of self-represented parties receiving advice and information on appropriate conduct and language in the courtroom prior to any court appearance or hearing. Legal assistance providers deliver duty lawyer services to self-represented litigants at many locations of the FCFCA including providing legal advice and information about court processes, help with the preparation of documents, and in some cases, representation.
With the merger of the Family Court of Australia and the Federal Circuit Court of Australia it is intended that the Court process will be simplified and make it easier to navigate for SRLs. However, in practice the addition of a new set of Rules - coupled with an already complex piece of legislation, regulations and protocols - it is not clear whether the new FCFCA will make things easier or more difficult for SRLs. This is a problem that has confronted the Court for some time.